PART I. PERSONS.

to the 2nd section of 16 & 17 Vict. c. 34, duties are granted to the Crown (inter alia) “in respect of the annual profits or CAP. V. gains arising or accruing to any person residing within the Foreign United Kingdom from any profession, trade, employment,

Corporations. or vocation, whether the same shall be carried on in the Residence of United Kingdom or elsewhere." By s. 5 of the same statute corporations. and by 5 & 6 Vict. c. 35, s. 40, the word "person," as used here, includes "corporation" or "joint-stock company." The residence of a corporation within the United Kingdom is therefore made a conclusive test of its liability to pay income tax in respect of the whole of its yearly gains, wherever made. The cases that have been decided on the question of the residence" of a corporation within the United Kingdom, for these purposes, by no means support the dicta of Lord St. Leonards in The Carron Iron Co. v. Maclaren,(a) just referred to, as to the possibility of a company having a double residence or domicil. In The Attorney-General v. Alexander(b), the question was as to the liability under the section of the Income Tax Acts, cited above, of the Imperial Ottoman Bank. It was proved that the bank was a corporation created by Turkish law, and had its seat fixed, by the concession and the statutes which constituted it, at Constantinople, with power to establish branches and agencies at other places. It was the State bank of Turkey, where it was a bank of issue, and was charged with the collection of the revenue, and with certain operations relating to the currency, and with the payment of interest on the public debt, and received from the State a subsidy on account of the business transacted by it. On its creation it took over and continued to carry on the business of an English bank in London; and, since its creation, the annual meetings of shareholders had always been held, and dividends declared, in London; though the statutes permitted the annual meetings to be held at any place which the committee of management might fix. It was held that the bank must be regarded as residing at Constantinople alone, where it had its seat, and not in London, and that it was consequently only liable to pay income tax on the profits made by it in England. We have to deal with this question," said Cleasby, B., " merely upon the words 'any person residing in the United Kingdom.' Now, if residence could not be predicated of a corporation, if the idea were not applicable to a corporation under this Act of Parliament, then, of course, the first branch of the schedule could not apply. The argument is not put on that ground; (a) 5 H. L. 416, 449.

66

(b) L. R. 10 Exch. 20.

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and we have to consider whether it is made out, not only that the word 'person' is fulfilled by this body, which is a corporation, but whether the terms 'residing within the United Kingdom' are also satisfied. . . . It appears to me sufficient to say that, looking at the constitution of the Imperial Ottoman Corporations. Bank, we can see it did not carry on business in England in Residence of such a sense that we should be justified in saying it resided corporations. here. . . . It is not made out that the bank is resident in England, or is even carrying on its business here, though some of its business is carried on here."(a) It was contended at first," said Amphlett, B., in the same case," that a person carrying on business in London or elsewhere might be said to reside where he was carrying on business: so that, if he had two or three establishments in different countries, he might be said to reside in any of those countries. . . . But this was abandoned as untenable;(b) and if that is so, if an individual cannot be said to reside wherever he carries on his business, how can a foreign corporation be said to reside within the kingdom for no other reason than that it carries on business there? It must follow the same rule. What, then, is the reasonable meaning of a corporation residing anywhere? It appears to me that it is this: that a corporation may be said to reside wherever it has its seat."(c)

The principle of these judgments is confirmed by the later decision in the analogous case of The Cesena Sulphur Company v. Nicholson,(d) which depended upon the same statute. Both in that case and in the instance of The Calcutta Jute Mills Company, which was argued at the same time, the corporation in question was incorporated under the English statutes (the Companies Acts, 1862 and 1867), with a board of directors who met in England, where the head office was situated. In both cases the profits were exclusively earned abroad, where the whole of the practical business was carried on; and in both cases it was decided that the company was resident in England, and must pay income tax upon the whole amount of its profits, wherever earned.(e) The decision of Kelly, C.B., was based upon the ground that, whether there might or might not be more than one place at which the same corporation or joint-stock com

(a) L. R. 10 Ex. 32.

(b) Sulley v. Attorney-General, 5 H. & N. 711; 29 L. J. Ex. 464. (c) L. R. 10 Ex. 20, 33.

(d) L. R. I Ex. D. 428.

(e) It will be seen, infra (Part II. chap. vii.), that these cases were questioned, if not overruled, as far as the quantum upon which income tax was payable, by Colquhoun v. Brooks, 14 A. C. 493. So far as they illustrate the facts which amount to residence by a corporation, their authority does not seem to be interfered

PART I.
PERSONS.

CAP. V.
Foreign

pany resided, a joint-stock company did at any rate reside where its place of incorporation was, where the meetings of the whole company, or those who represented it, were held, and where its governing body met in bodily presence for the purCorporations. poses of the company, and exercised the powers conferred upon Residence of it by statute and by the articles of association. The use of corporations. the word 'residence,' said Huddleston, B.,(a) "is founded upon

the habits of a natural man, and is therefore inapplicable to
the artificial and legal person whom we call a corporation.
But for the purpose of giving effect to the words of the Legis-
lature an artificial residence must be assigned to this artificial
person, and one formed on the analogy of natural persons.
I do not think that the principle of law is really disputed, that
the artificial residence which must be assigned to the artificial
person is the place where the real business is carried on." It
will be seen that though Kelly, C.B., guarded himself from
being supposed to lay down that a corporation could have but
one residence, the language just cited is not limited by a similar
restriction, and points strongly to that proposition. The lan-
guage of Amphlett, B., in The Attorney-General v. Alerander is,
as has been already pointed out, even more decided. It is
obvious that if the artificial residence which is attributed to
an artificial person is to be analogous to the natural residence
attributed to a natural person, the analogy must be carried out
consistently. The birth-place of a natural individual is not
conclusive evidence of his domicil or his residence. It is prima
facie evidence of his domicil of origin, and his domicil of origin
is prima facie his actual domicil and residence de facto. He
may be a man who once resided in one country, and now
resides in another, but he can only be residing in one country
at the time the inquiry is made.(b) So in the case of an
artificial person, incorporation and registration are or should
be merely facts to be taken into consideration in determining
the locality of the artificial residence which is to be attributed
to the corporation. Prima facie they show where it resides;
but if it is established that the seat of its business is elsewhere,
that it has in fact left its birth-place, those circumstances are
no more conclusive than is the circumstance of birth in
the case of the natural individual.(c) Further, just as a
natural person must be pronounced, for the purposes of domicil,

(a) Cesena Sulphur Co. v. Nicholson, L. R. 1 Ex. D. 428, 452, 454.

(b) Story, § 45a; Westlake, § 316; Somerville v, Somerville, 5 Ves. 786. This does not apply to mercantile domicil in time of war: The Jonge Klasina, 5 C. Rob. (c) Cesena Sulphur Co. v. Nicholson, L. R. 1 Ex. D. 428, 453.

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to be resident in some one place more than in any other, however nicely balanced the evidence may be, so a corporation should be regarded as necessarily having its seat or centre of operations (der Mittelpunkt des Geschäftes-le centre de l'entreprise) in some one spot to the exclusion of all others. It may Corporations. be difficult to decide between two or more places whose Residence of claims appear conflicting, but it appears to be the duty of the corporations. law to pronounce between them, and to declare that in fact as well as in law one establishment is the centre where the corporation resides, while the other establishments are merely branch offices or agencies.

The seat of a corporation being therefore the place where the business is carried on, the English decisions on those statutes which make it necessary, for the purposes of county court jurisdiction, to determine where the place of business of the plaintiff or defendant is carried on,(a) will afford some assistance in answering the question in individual cases. Thus it has been held that the place of business of a lime, cement, brick and manure company was at their works in Somersetshire, where the lime, &c., was made, sold, and delivered, and not in London, where the registered office was situate, and the meetings of the directors had been held; (b) that a registered company does not "carry on its business" where an agent sells its goods in his own name; (c) that the Great Western Railway Company carried on its business at Paddington, the London and North-Western Railway Company at Euston Square, and the Great Northern Railway Company at King's Cross, and not at the minor stations on the line;(d) and that the seat of the business of a promenade pier company was in London, where the registered office was situate, and the general business transacted, although the pier, the erection and maintenance of which were the sole objects of the company's existence, and from which the whole revenue of the company was derived, was situate at Aberystwith in Wales.(e) And a railway company incorporated under a private Act of the British Parliament for the purpose of making a railway in Ireland, with an office in Westminster for the transaction of business, and no

(a) Taylor v. Crowland Gas and Coke Co., 11 Ex. 1 ; 24 L. J. Ex. 233. (b) Keynsham Blue Lias Lime Co. v. Baker, 33 L. J. Ex. 41. But see Cesena Sulphur Co. v. Nicholson, L. R. 1 Ex. 428, cited above, with which this case appears scarcely consistent.

(c) Oldham Building, &c., Co. v. Heald, 33 L. J. Ex. 236.

(d) Adams v. Great Western Ry. Co., 30 L. J. Ex. 124; 6 H. & N. 404; Brown v. London and North-Western Ry. Co., 32 L. J. Q. B. 318; 4 B. & S. 326; Shiels v. Great Northern Ry Co. 30 L. J. Q. B. 331.

(e) Aberystwith Promenade Pier Co. v. Cooper, 35 L. J. Q. B. 44.

PART I. PERSONS.

property or effects in Ireland, was held to be a foreign corporation so as to be bound to give security for costs when suing in CAP. V. England. (a) Whether these decisions are all strictly in concord is not so important as the general conclusion to which Foreign Corporations. they point, that the question where a corporation resides, Residence of dwells, has its seat, or carries on its business, is one and the corporations. same question of fact, depending for its answer, as does the

Nationality

of corporations.

question of domicil in the case of an individual, upon a review of all the circumstances of the particular case. Notwithstanding certain ambiguous expressions in the case of The Carron Iron Company v. Maclaren, (b) which have been already referred to, it seems probable that this sort of residence is the nearest approach to the domicil of an individual of which the artificial person called a corporation is capable.

The idea of domicil "by election," which is occasionally introduced into French contracts, is relevant in this connection; but it is hardly more than a figure of speech. A corporation, like an individual, may contract that it shall be dealt with as if it were domiciled in any specified country, or that it will submit to any specified jurisdiction. Having so contracted, it will be held to its agreement; and service of a writ in the manner stipulated for by the contract will be considered valid.(c) The cases with regard to individuals are analogous.(d)

The conception of nationality, like that of domicil, can only be applied to corporations in a metaphorical sense; but in time of war it may often be necessary to consider it as so applicable. It would appear clear that a corporation is for some purposes to be regarded as a subject of the State by whose law it was incorporated, and in which it is registered and carries on its business.(e) In the case cited all these conditions existed. In the not uncommon case of a company registered and incorporated in England, but actually carrying on the whole of its business abroad, it seems probable that the question of nationality would have to be decided by the same practical considerations as the question of its domicil.(f) It

(a) Kilkenny, Sc., Ry. Co. v. Feilden, 6 Ex. 81; 20 L. J. Ex. 141; Edinburgh and Leith Ry. Co. v. Dawson, 7 Dowl. 573.

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

p. 118.

(c) The Thames Sulphur Co. v. La Société des Métaux, Times Law Rep. (1889), (d) Copin v. Adamson, L. R. 1 Ex. D. 17; Vallée v. Dumergue, 4 Ex. 290; infrà, chap. xi.

() Driefontein Consolidated Gold Co. v. Janson (1900), 2 Q. B. 339, 346, S.C. (1902), A. C. 484. 490.

(f) Ante, p. 137. In Attorney-General v. Jewish Colonisation Ass. (1900), 2 Q. B. 556. at p. 575. Darling, J., appears to treat the domicil and nationality of a company as equivalent expressions.