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be due to the directions of a pilot navigating his vessel ; and in the American Courts the compulsory employment of a pilot has been held not to exempt the shipowner from liability for damage done by that ship's negligent navigation by the pilot (The China , 7 Wall. 53). At any rate, if the present principle be maintained, the Courts have lately intimated that the provisions of the existing system require legislative recasting, no principle being discoverable on which the various exemptions and non-exemptions from this compulsion are based.
French and English Ideas of Partnership.
A recent decision of the Court of Appeal on a question of procedure is of importance in its bearing on the conception of a partnership in English law (Ellis v. Wadeson , 1 Q.B. 714), decided under Rule 5 of Order 48A, that, where an action has been brought against a firm in the firm's name, and of the two partners one dies after writ issued and appearance entered, it is wrong for the surviving partner to put in a defence in his own name, because not being sued in his personal capacity, he must defend for and in the name of the firm. This judgment is also of interest in its bearing on a passage in Mr. Barclay's little book on British Companies in France, in which, after pointing out the distinction between civil and commercial partnerships in French law, viz. that the former has no independent individuality or status apart from the members of it, and its members are not jointly liable for each other's acts, while in the latter the individual partners are merged in the firm which has a personality distinct from that of its several partners, Mr. Barclay says: “Corporate existence would be a better expression than independent personality, to describe the artificial individual created in France by an association of two or more persons trading under a corporate name. .. The English
notion of a corporation differs essentially from that of the French. English jurists associate it with the idea of a continuous succession of a legal and perpetual identity under a corporate name. Thus English law classes with corporations certain offices held by a single person irrespectively of the individual tenant of the office as corporations sole. The essential feature of the French notion of a corporation is its possession of a legal personality independent of that of the individuals composing it. While French law knows no such fiction as a corporation sole, English common law refuses corporate powers to trading partnerships ; it knows nothing of the firm as a body or artificial person distinct from the members composing it. There are, however, signs of coming changes in our law which may bring it more into harmony with the law of continental countries and of Scotland” (pp. 4, 5). The English conception of a firm has its importance in international law in cases where the firm is composed of foreigners resident out of English jurisdiction; and Mr. Barclay's last quoted statement, and the illustrations he gives of it, suggest an examination of the English view of a foreign firm as contrasted with its view of a foreign corporation.
A foreign corporation which has an office and carries on business in England is treated by English law as having a legal existence in this country, and is amenable to the ordinary process in the person of its resident head officer just as if it were a foreign individual residing here (Order ix. r. 8); and the most recent example of this is Gouraud v. Edison Phonograph Co. (1899, May 16, C.A.). The English common law view of a firm, viz. that it is a collection of individuals not possessing any collective independent personality, although largely superseded by the statutory rules of procedure in force previously to the present system (Order 48A), which made a firm a legal entity to some extent, still survived, and appeared in several decisions relating to process against foreign firms. Thus it
was said that when a firm's name is used it is only a convenient method for denoting those persons who compose the firm at the time when that name is used, and a plaintiff who sues partners in the name of their firm in truth sues them individually just as much as if he had set out all their names (Lindley, L.J., IVest. Nat. Bank of New York v. Peres (1891), I Q.B. 304); and in a later case it was stated that suing a firm is a short way of suing the individual members of the firm, and therefore where a writ could not issue against members of a firm in their individual names without leave, a writ could not issue without leave against a firm in the firm's name (Heinemann v. Hale (1891], 2 Q.B. 83). On this principle it was held that firms composed of persons resident abroad, but carrying on business in this country, could not be sued as firms on the ground that being nothing else but individuals resident abroad, it would be a breach of international comity to do so (Russell v. Cambefort [1889), 23 Q.B.D. 526); that if all the members of a firm carrying on business abroad resided abroad, service of a writ in the firm's
a partner temporarily present in the jurisdiction was not good service on the partnership (West. Nat. Bank of New York, above); that in the case of a firm carrying on business abroad, service of a writ in the firm's name upon a partner resident in England was bad (Heinemann v. Hale, above); and that a firm, some members of which are abroad, cannot be sued, at all events without leave, and that if they can be sued at all in the firm's name, which seems doubtful, leave must be obtained at all events (Indigo Co. v. Ogilvy (1891), 2 Ch. 31, 39). It had, however, also been held that if a firm carries on business here and abroad, and one partner is resident here, service on that partner is good service on the firm (Lysaght v. Clark (1891), I Q.B. 555); and the late Lord Justice Chitty had suggested that the fact of a firm carrying on business within the jurisdiction was sufficient in international la. to ground process against it as a firm by
service on a partner within the jurisdiction, although he and the others were resident outside it (Shepherd v. Hirsch (1890], 45 Ch. D. 231, 235). This view has been adopted and extended in the present rule of procedure (1891, Order 48A), which seems to recognize the idea of a firm having an independent personality apart from its members.
The chief provisions of this order relating to firms is as follows. By the first rule, any two or more co-partners carrying on business within the jurisdiction, may be sued and may sue in the name of the respective firms, if any, to which they belonged at the time of the accruing of the cause of action. The words “carrying on business" (which are an addition to the former procedure) mean the possession within the jurisdiction of a place of business held in the name of the firm, where business is carried on in behalf of the firm, by a partner or person in the pay of the firm (Grant v. Anderson (1892), I Q.B. 108); and the rule applies to all firms carrying on business within the jurisdiction, including foreign and colonial firms, all the members of which reside out of the jurisdiction (Worcester City Bank v. Firbank (1894), 1 Q.B. 784). By the third rulc service of a writ in the firm's name may be made upon any partner in the jurisdiction, or on the manager at the firm's principal place of business in the jurisdiction, whether any of the partners are out of the jurisdiction or not, no leave to issue a writ against them out of the jurisdiction being necessary. By rule 5, persons sued as partners in the name of the firm, must appear individually in their own names, but all subsequent proceedings continue in the name of the firm Ellis v. Wadeson, above). By rule 8, on judgment or order against a firm, execution can issue-(a) Against any property of the firm in the jurisdiction. (6) Against any person appearing in his own name in answer to process against the firm, or admitting on the pleadings that he is, or who has been adjudged a partner. (c) Against any person individually
served as partner with the writ and failing to appear. To obtain execution against any other person, leave from the Court is necessary; but, except as against any partnership property, a judgment against a firm does not affect any member who was out of the jurisdiction when the writ was issued, and not appearing unless made a party to the action by leave (under Order XI.), or served within the jurisdiction after the writ is issued. By rule 9, debts owing from such a firm are attachable on service being made upon a partner or manager in the jurisdiction.
The last rule of the order (11) deals with individuals, and makes any person carrying on business in the jurisdiction in a name or style other than his own name liable to be sued in that name, as if it were a firm name, and so far as possible all the previous rules applicable to his
It has been held that this rule does not apply to a single foreigner resident out of the jurisdiction, but having a branch office here and trading in a name not his own (St. Gobain v. Hoyermann (1893), 2 Q.B. 96); nor to a domiciled Scotchman resident in Scotland, but carrying on business in Liverpool as A & Co. (McIver v. Burns (1895), 2 Ch. 630). The grounds for these decisions which certainly do not follow the letter of the rule are, that a foreigner resident out of the jurisdiction, who trades here in his own name, can only be served with a writ out of the jurisdiction by leave of the Court, and the fact that he trades here in a name other than his own should not make him more liable to English jurisdiction; and that no analogy can be drawn from the firm process being allowed against foreign firms carrying on business here, because in that case judgment goes against the joint assets and not the assets of the individual partners, while in the case of an individual trading as a firm there are no joint assets, and the judgment against an individual who carries on business is against him and him