Carron Iron Co. Proprietors v. Maclaren (United Kingdom)

CARBON IRON CO. V. MACLAREN [ 185 51 v H.L.Q, Q15

exceptions are properly on the record, is, that there should be a venire de novo,

and I shall move your Lordships accordingly.

Lord Brougham.--My Lords, I take exactly the same view of this case as my

noble and learned Friend, and the learned Judgm, [&ti) to whose assistance we are

so much indebted, and to whom we are indebted also for the speedy way in which

they have enabled us to dispose of this caae.

I confess i t was a result that I expected from a very early period of this argu-

ment. I had little or no doubt in my own mind of the conclusion at which the

learned Judges would arrive; but it i s very satisfactory to have heard that con-

clusion stated so ably and 80 clearly, and upon both points; upon the point of

practice, if I may so term it, though it goes in its i Inpor~nce a little beyond mere

practice, as well as upon the merits of the case.

My Lords, I have no doubt that the error in the Court below may be traced to

confounding a new venire with a venire de nozto; but be that 8s it may, i t is perfectly

clear that the learned judges have given so clear and a u t ~ o ~ ~ ~ t i ~ e an exposition

upon this matter as will prevent for the future m y deviation from the correct

course.

Upon the two cases

that have been referred to by the Iearned Judges, and by niy noble and learned

Friend, of Pozmg v. Crote [4 Bing. 2531, and the other somewhat doubtful caae o f

Coles v. Ban& of England, I say 110 more, except that, I agree in what the learned

Judges have said upon them, and also in the doubt insinuated rather than expressed

by the learned Judges, and more plainly intimated by my noble and learned Friend,

as to how the latter case might have been determined if i t had not been disposed

of in the way in which it was.

With respect to this case itself, I really entertain no doubt.

Judgment affirmed, with a direction.-Lords' Journais, July 2, 1855.

[416] THE CABRON IRON ~ O M P A ~ Y PROPRI1ETORS,-~pl7etZQRts; JAMES MAC-

LAREN, HESRY DAWSON, E. H. TIBBATS STAINT'ON,-nespondents;

[March 20, 22, 23, 26, July 11, 18553.

S.C. 24 L.J. Ch. 620; 3 W.R. 597; and 8Utr aonz.

Hac$aren v. ~ ~ ~ u i ~ o ~ or S ~ u n ~ o ~ ~ v. Carpon Co., 21 Beav. 152 ; 26 L.J. Ch. 332,

25 L.J. Ch. 577; 2 Jur. N.S. 49. Aa to stay of concurrent proceedings, see

M'Neary v. Lewis, 1882, 22 Ch. D. 406 ; Hy7vw.w v. Helm, 1883, 24 Ch. D. 534 ;

The Mannheim (1897), P. 13; Cliriatkn v. Christiaa, 1898, 78 L.T. 86; R.S.C.

1883, Ord. 72, r. 2. As to questions of domicile and service, see iVewby P.

YOB Oppen, 1872, L.R. 7 Q.B. 295 ; iVtittev v. Bessageries Maritimmes, 1885, 54

L.J. Q.S. 528 ; r ~ a ~ g ~ n v. C ~ ~ ~ t o ~ . d ' ~ ~ ~ o ? ~ ~ p ~ e , 1889, 23 Q.B.D. 523 ; The

P r i c e s s Cldrnenbine (1897), P. 18; R.S.C,, 1883, Ord. ix. r. 8.1

[Mews' Rig. viii. 312; xi. 667.

~ ~ r ~ s ~ ~ ~ i o ? ~ - ~ o r e ~ ~ ~ C o ~ r t - E ~ ~ i t y - ~ g e n t - o r n ~ c ~ e - i l ' o t ice.

If the c i ~ u m s t ~ n c e 6 of a case are such as would make i t the duty of @ne court in

this country to restrain a party from instituting proceedings in another court

here, they will also warrant it in imposing on him a similar restraint with

regard to proceedin@ in a foreign court.

The fact of a foreigner having property in this country, enables the Court here

to make effectual an injunction issued to him; but, especially in the cage

of a foreigner who seeks no assistance from the courts here, the issuing of

such injunction ought clearly to be shown to be required as conducive to

justice.

A company map have two domiciles, and placeer of

business may f w the purpose of founding jurisdiction be treated as places

of domicile, and service there i s sufficient.

Where there is a plain equity in favour of an injunction, and the ~ p ~ s e n t a t i v e ~

of the red and personal property, who seek it, are in this cnuntry, the Court

will grant it, and reetrain proceedings in the courts of a foreim country.

In such a case the Cou& will decide upon the consideration of all the

circumstancas, and require partiett here to take or omit. such steps in 8

Per Lord St, Leonards.

B.L. x. 96 1 31

V*B.L.C., 4l7 CARRON IRON CO. v, MACLAREN. E18551

foreign court as the ends of justice may require. The particular pmvif6ons

of the foreign law applicable to a transaction, proceedings as to which in

a foreign court are thus restrained, must not be disregarded.

A Company waa chartered in Scotland for the manufacture of iron. Its manu-

factory and chief office of management were there; it had agents for the

sale of the goods in different parts of Scotland and England, and it poeseaaed

real estate in both countries. A. a large shareholder in the Company, and

possessed of real and personal property in England and Scotland, was the

Company’s agent for the sale of goods in London and was domiciled here.

When he died, he made a Will in the English form, and appointed as his

executors persons who were resident in both countries; his heir was one of

these persons, and was also the person who succeeded him in the London

agency for the Company. Probate of the Will was taken out in England,

and such of the executors as thought fit t~ apply to the Scotah Court were

according to the Scotch law confirmed in the execut

administration suit was instituted in the Court of Chancery, and the usual

order for a general account of the debts and assets made. After the date

uf E4171 this order the Iron Company took proceedings in the Scotch Courts

against the real and personal estate of the testator in Scotland. Notice of

an injunction a t the suit of the executors, was served on the Company’s

agent in London, and on the Company’s manager in Scotland ; the Company

did not appear, and the injunction was issued. The Company then moved

to dissolve the injunction. No order was made.

Held, (Lord St. Leonards dissentiente) t,hat the injunction could not be main-

tained :

&U. Whether service of notice of injunction on an agent, when the principal is

out of the jurisdiction, can be good service, especially when that agent is

merely an agent for the sale of the goods of the principal?

Service of notice on one member of a Corporation is sufficient.

This was an appeal against an order of the Master of the Rolls, made in a suit

in which Maclaren and Dawson, aa executors and trustees under the WilI of Henry

Stainton, deceased, were the Plaintiffs, and H. Tibbats Stainton, another of the

trustees and executors, and a h the heir-at-law of the Testator, and other persons

interested in his residuary real and pemonal estate, were the Defendants. The

suit was instituted in March 1862, for the purpOse of carrying the trusts of the Will

into execution ; and the Appellants were not originally parties thereto. The Tes-

tator died possessed of considerable real and personal property in both England

and Scotland.

The Bill set forth, among other things, that the Testator had been in his life-

time the London manager for the Appellants, and, as such, waB in the habit of

receiving moneys and making payments on their behalf; and that shortly after his

death the Appellants advanced a claim against his estate, in respect of assets of

&heirs alleged to have been in his hands a t &he time of his death; and the Bill

charged that t&e Plaintiffs in the suit had no means of ascertaining the truth of

the allegation, and were willing to act in the matters of the Will as the Court of

Chancery E4181 might direct; and it prayed for directions, and an account, and,

if necessary, the appointment of a receiver.

In May 1852 the Master of the Rolls made a decree by which, among other things,

it was ordered t

Testator, which had come to the hands of the executom, and should inquire what

part, if any, was still outstanding and undisposed of, and under what circumstances,

and by whom, the same ought to be got in; and that the part not specifically

bequeathed should be applied in payment Qf debts, etc. ; and the Mater was directed

to inquire as to the real estate of the Twtatar, and who had been in the m e i p t of the

rents and profits since his death ; and further directions were reservad, and any of

the parties were to be a t liberty to apply to the Court, as there should be occasion.

On the 12th July 1852, the three executors mere, according to the forms of the

Scotch law, confirmed by the oommissary in Edinbur& w exmutors

of the Testator in Scotland. By this proceeding t h y were invested,

962

CARRON IRON CO. z1. MACLAREN [1855] V H.L.C., 419

in Scotland, with rights and powers similar to those enjoyed in England by an

executor, after grant of probate. Joseph Dawson, !I%omas Dawson, and William

Dawson, nephews of the Testator, the second and third of whom were resident in

Scotland, were also named in t-he Will as executors; but they had not accepted the

trusts of the Will, or proved the same in Scotland, but possessed by the Scotch law

the right, at any time, to come in and do so.

The Appellants had been incorporated in 1773, by a Royal Charter, under the

union seal of Scotland; their works were carried on at, Carron, near Falkirk, in

Stirlingshire, where the manager, who was stated in the affidavits on the part of the

company ti, be the “ sole manager,” resided, where the office of the company was

situated, and [419] the books were kept; they had agents for the sale of their manu-

factured goods a t various places in Scotland, and a t London and Liverpool ; they

had not any works situated in England, but they rented places for the business af

these agencim in England, and they had also real estate in London, Liverpool, and

Cumberland. The Testator had been their agent in London, and on his death the

manager examined his accounts, and claimed, as due to the Appellants, a debt, the

principal aud interest of which amounted to &108,000. The Testator, in addition

to his other property, was, &t he time of his death, possessed of shares in the Carron

Company, to the amount of above 380,000.

Some correspondence took place between the solicitore for the Appellants and

for the Respondents, as to the mode of settling the claim of the Appellants against

the Testator’s estate. They could not agree on this matter, and, finally, in October

1862, the Appellantg commenced an action in the Court of Session against the

Respondents, as executors, to recuver the sum of &69,617 Is. 6d., for principal,

and the sum of &38,873 17s. lOd., for interest thereon, due from the Testator.

Letters of inhibition *. and ari-estment+,t signeted 3d Navember 1852, were, a t

[:420] the instance of the Appellants, issued against the Responden~, as executors

and trustees; these letters of inhibition were exgcuted on the 4th November, and

the letters, and the execution thereof, were registered on the 6th November. On

the 11th November a notice was served by the Respondents on William Dawson,

the manager of the Appeilaats, a t their works in Falkirk, to the effect that, an the

15th November, application would be made to the Master of the Rolls, for an in-

junction to restrain the Appellants from further proceeding in Scotland in their

suit. On the same day a similar notice was served on H. Tibbats Stainton, one of

the executors and Respondents, the then agent of the Appellants, in London,$ such

notice being delivered to him in the warehouse of the Appellants, in Thamw Street.

The Appellants did not appear in the Court of Chancery, and the injunction issued,

“ Inhibition ’’ affected

the Testator’s real (called heritable) estate in Scotland, and prevented any one from.

purchasing it from the Trustees, except subject to the claim of the Appellants. If

the Appellants established their claim and obtained a decree they would be 0n-

titled thereon, under ‘ I a procesi3 of adjudication:’ to take possession of the heritable

estate of the Testator, and make it available for the payment of tbs debt, subject,

however, to the righ% of my other creditor, who might, within a year and a day,

also obtain “ adjudication,” and so come in and participate in the produce of such

real estate.

By letters of arrestment,

the Appellants became entitled to arrest, or attach the personal property of the

Testator in Scotland aw security for payment of their claim in the action, whenever

that claim should be established by a decree; a process of “Forthcoming” would

then issue, and the personal property would be applied in payment. A multiple-

poinding might be raised on the arrestment, if there were different claimants on

the fund ; and then all claimants w6uld be cited.

$ I n wder to show the i n s ~ G i e n c y of thia service, Mr. Brodie, the Appellant’e

iaw agent, filed an affidavit in which he denied that E. T. Stainton was their

I # manager,” and alleged that the ea;& Stainton had “no power b represent the

Company or to do rany act on its behalf, except to sell the manufactured goods of

the Company for the time being entrusted to him8 €or sale? and as pmof of that

fact, the affidavit set out the letter written by Stainton, on the 16th of November

963

-

* Inhibition is a process against real or heritable estate.

t Arrestment is a procem against personal estate.

V H.L.C., S l CAREON IRON CO, v. M A C ~ A R E ~ [1855f

but leave was granted to the company to move to dissolve it on short [@I] notice.

The Appe~ants moved accordingly, and ~ d a v ~ ~ setting forth the factg, and stating

what was the law of Scotland, were put in, and the cause was heard before His

Honor, who, on the 6th of Recember 1852 (16 Beav. 279, 289), refused to dissolve

the injunction, but reserved liberty Is apply, so that he might, if n ~ e ~ a ~ , allow

proceedings in Scotland, to prevent the assets there from being swept away by

creditors not within his jurisdiction. The costs of both parties ta be costs in

the cause.

The Lord Advocate (Mr. Moncrieff), and Mr. Rolt (Mr. Cotton was with them),

for the Appellants.-The Appellantg were not within the jurisdiction, nor subject

to it, so as to make it possible duly to serve them with notice of an injunction in the

administratio~~ suit. Secondly, if they were within the jurisdiction, still there wae,

in fact, no regular service of notice of motion; and thirdly, if it should be held that

they were regularly before the Court, there was no power in the Court of Chancery

to prevent them from proceeding in their suit in Scotland.

As to the first point, the a ~ d a v i t s here show that this company is a Scotch corpora-

tion with its factory situated in Scotland, and with an agent or manager there; that

the office of’ the company and the books are there, and that the manager who resides

u t Carron i s the sole manager of the company. The Appellantg are ziot therefore

in any way within the jurisdiction of the Court of Chancery, either by themselves

or by Stainton, as their agent; for Stainton is unly a salaried agent to sell the goods

of the Appellan~, and as such cannot bind them by receiving notice of a motion

on which an attachment may issue against them in a cause to which they are no&

parties. Shaw v. L k d w y (18 Ves. 496) is no longer to be considered an

authority for making an [422] attachment, with proclamations on service of subpoena

in Scotland, both the cases cited there, and 0x1 which the decision proceeded, being

found to be wrongly stated (in the 2d Ed. of Ves. jun. Reports, Vol. 18, p. 496, the

Order previously granted i s said ta have been 6nalip refused, as Scott v. Nuzcgh (4

Bro. Ch. Cas. 213) and Bourka v. Lord ~ a ~ ~ ~ ~ d (2 Dick 557), are misreported ;

they were the ~ u t ~ i o r i t ~ e s on which Shaw P. ~~~~~~ was u r i g i ~ ~ l l y d ~ i ~ e ~ ; s e

Scott P, Hough (4 Bro. Ch. Cas, 213, 5th Ed.). $oh?@oirb v. Nag& (1 Moll. 240),.

rand the ca8es there cited, in notes, eapeciaHy that of ~ e r e ~ ~ ~ h v. Wdletg, are the

other way. Through the case of ~ ‘ ~ a s ~ e r v. ~~~x (2 Myl. and K. 32), which

raised a doubt whether the 2 and 3 Will. 4, c. 33, extended to Scotland, may now be

considered as overruled by that of C@mron v. Camerun (;d. 289), still it i s clear

that there must be a real and not an implied service to render that and the sub-

sequent Act, 4 and 5 Will. 4, c. 82, effectual. It is said that the service here was

made in virtue of one of the General Orders of May 1845, NQ. 33 (Toulmin’s Statutes

and Orders in Chancery, p. 127); but that order relates to the service of U subpoena,

not of il notice of motion. So that even if the Court of Chancery has power to

make orders a f f ~ t i n ~ persons in Scotland, the order now made is not one of the

kind within its powers, &ortan v. K ; ~ 7 g s ~ ~ ~ (2 Mac. and 6. 139), where, upon that

ground, Lord Cottenham refused to make an order for the service of a copy of the

bill under the terms of the 23d Order, of the 26th of August 3.841, upon a defeiidan~

in Ireland.

Again, the proceeding is defective, for there was no agent to receive

service, and consequ~ntly there was no good service. The corporatio~

could have no residencs here; and there was no agent here to re-

present it for this purpose. The corporation was Scotch, and could not

have an English domicile. The service therefore was bad, [@3J ~ a ~ ~ s o ~ v. The

1852, accompanying the injunction which had been served on him, as the agent OF

the Company. In that letter, Sitalnton said, I‘ I stated to the party bringing the

document, that I had nothing whatever to do with the affairs of the Carron Com-

pany in Scotland, where the whole of the business is conduct^, and is regulated

and directed, and soleIy carried on by the manager a t Carron, under the controf

of the general Courta of Proprietors meeting there, and that my duty was merely

the disposal of the goods sent to me for sale.” The writer, however, Irdded, I made

this s t a ~ m e n t in accordance with the s ~ t g g ~ t ~ o n contained in your letter of the 13th

instant.”

964

CARRON IRON CO. 21. NACLAREN [I 8551 v H.L.c., 4114

Barchiolaess of l fa s thgs (2 Keen, 509), where the service was held good solely on

-&he ground that there was an English residence. Here there was nane.

[Lord St. Leonards.-Your argument would go to show that though the Ap-

pellants had housm of business in Frmce, they coyfd not be sued there,]

That would depend on the. law of France. The term “ residence ” is wholly

~napplicable to a corporation ; and here the affidavit of Mr. Brodie shows that the

agents in England were agents for sale of goods, and for nothing else. On a mere

question whether goods were sold in England by an agent here, service on him who

was the company’s agent for the sale of goods, might perhaps be sufficient, but not

for any other purpose. The case of Webb v. Salmon (3 Hare, 251) shows clearly

that in order to bind the principal, the agent must be an agent for the particular

purpose. In that case, HobiLouse v. Courtney (12 Sim. 140), which bad laid down that

rule, was referred to, and Vice-Chancellor Wigram said he should certainly not

carry the rule there stated any f urtber.

It cannot be said that service on H. Tibbats Stainton can be good service on the

company, on account of his being a shareholder of the cumpany, for he himself has

never held shares in it; and assuming the deceased Henry Stainton to have been

a partner and an agent, the present Respondent does not fill either of these characters,

being only the executor of his father. At all events, it is a settled rule of practice

&at such a service as this, even upon an agent, could only be made upon leave granted

by the court, Tihitmore v. R y m (4 Hare, 612); and no leave wag obtained here.

The service was not therefore in any respect a regular service. The Appellants did

not appear [424] upon this irregular service, and the Master of the Rolls made an

order which shows that he himself doubted about the jurisdiction; he did that

which is only done in ex-parte causes; he gave to the Appellants liberty to move on

short notice, to dissolve the injunction.

It may be assumed for the purpose

of the argument, though it is not in fact admitted, that the corporation here was

within the jurisdiction, and further, in the same way, i t may be admitted that in an

administration suit a Court of Equity will, under particular circumstances, restrain

a party from instituting a suit in Scotland against the testato,r’s estate. But to

authorise the exercise of such a jurisdiction tame substantial and independent

equity must be established, such %E that the objects of the two suits are the same.

~ ~ ~ r ~ o n v. Gurney ( 2 J. and W. 563). In 3ushBy v. ~ u n d a y (5 Xadd. 297), the

injunction wag granbd solely because such an equity was establish^; there is none

here. In 3eekford o. Kemble (1 Sim. and S. ?), a foreclosure suit had been instituted

in Jamaica after a decree here for redemption, and all the parties were resident

here ; the Vice-Chancellor thought that those circumstances showed a clear equity,

which warranted the issuing of the injunction. And Beauchamp v. Lord Huntley

(Jac. 546)’ was a ca8e where the objech of the two suits being alike, the injunction

wa~l granted, but only granted upon terms.

(Lord St. Leonards.-The institution of that suit was necessary in I d a n d for the

purpose of there giving effect to the order for the Receiver. SoL far it was right;

but to have allowed it to go on scy that the same claim would be pursued in both

countries a t the same time, would have been wrong.]

[&&J In Portwlington v. Soulby (3 Myl. and E;. 104) the injunction was granted,

but it was on this express ground (;d. 108) : “ the jurisdiction is grounded not upon

any pretension tcr the exercise of judicial and adminis~ative rights abroad, but on

the circums~nce of the p e m n of the party on whom the order is made being within

the power of the court,” and, of course, also of an equity arising against him. These

circumstances do not exist here. In CraJLam v. Mamrell (1 Mac. and G. 71) the

party proceeded in Scotland after a decree in an administration suit under which

he had claimed here; and that, like the others, afforded a strong ground for the mer-

cise of the jurisdiction.

The history of them injunctione, in casea where all the proceedings are in this

country, is adverse to the coulge now adopted. In Lurd Hardwicke’s time, it was

thought that a decree quod computet was not sufficient to found the jurisdiction,

Illartis v. Martin (1 Ves. 211), which followed the Bank of England v. Morlce (2 Bro,

P.C. 465). Lurd ThurIow thought otherwise, because the Court had possession of

the asset8, and that such a decree was for the benefib of all the creditors ; and b r d

966

The order was wrong upon the merits.

V H.L.C., 4116 CARRON IRON CO. z1. ~ A C L A ~ E ~ [1855]

Roslyn, extending the application of the jurisdiction, allowed the injunction to be

obtained on motion, which, as Lord Eldon stated in Pastom v. Dozlglus (8 Vm. 520),

was done only as a matter of convenience. In this case, the reasons which alone

justify suGh a coum do not exist, m e r e is no equity calling for the interference of

the Court. It has not got possession of the assets, and it cannd touch the real &ate,

.which is admitted to be beyond the jurisdiction. The proceeding in Scotland has bean

in rem; for diligence was used against the real estate, and proceedings by way of

arrestment [426] were taken against the personal estate. After that, neither the

trustees nor the heir could deal with the estate.

[Lord St. Leonards.-Do you suppose, then, that you might use this diligence

for your own advantage, exclusive of the other creditclrs $1

The Appel lan~ have no such exclusive object. !&ey are entitled to pursue in

Scotland such remedy as the law there gives them, without being deprived of any

which the law of this country may give them here; i f otherwise, the debtor might

utterly defertt their claim.

[Lord St. Leonards.-According to that reasoning, if there is real estate in both

countries there must be two suits.]

That i s so, Preston v. MelviEle (8 Clark and F. 1). The principle that no person

can have any remedy by the laws of one country against the property of a debtor in

aiiother country except ex comitate, and according to the special laws of the latter

country, is clearly laid down and enforced by Story in the (( Conflict of Laws ” (sec.

512 et Fep. 2d Ed.). There is no power here to enforce the decree of the Court of

Equity. Even if the heir was before the Court, there would be no power to compel

him to make a conveyance that would be effectual in Scotland. All that can be done

is, to inquire what real estate the testator pweased, and who, by the law of Scotland,

was heir to it. Even in the case of two administration suits in Chancery, when there

is tb decree in one of them, the other cannot be stopped unless the objects of bath are

identical. The duty of the administrator here i s not to administer an estate abroad,

Preston v. ~ e l ~ ~ l l e [S C1. and F. 11 : he has no such power.

[Lord St. hnards.-There the representativ~ were two different classes of per-

sons; here they are the same. They can therefore collect the whole astate? and

Preston [&2’7] v. Mehille shows that the personal estate 04 a person dying in England

must be distributed according to the law of England.]

The executors being the same or different, cannot make a difference in the prin-

ciple which is applicable to the case; The locality of the fund alone determines the

way in which the debts upon i t are to be paid, and the administrator must act accord-

ing to the law of the country in which administration has been granted. In Kennedy

v. Cassilis ( 2 Swanst. 313), under circumstances such as exist here, an injunction

was dissolved. In Jones v. Geddes (1 Ph. 724) an injunction granted 0x1 a suggmtion

of fraud to restrain a party resident in England from prosecuting a suit in Scotland

against lands in that country, was dissolved on the ground that the quwtion might

be more conveniently litigated there. In Cook v. Gregso’son (2 Drew. 286), pemon

died domiciled in Ireland, leaving property there and in England, and the same

executors in both countries. An Irish judgment was held to have priority, over

English simple contract debts, against Irish property remitted to England by the

esecutors, and being here administered. The same principle would no doubt be

adopted by the court in Scotland, and no unjust preference would be given to Scotoh

creditors. This irs LL Scotch company;

the testator was it8 agent, and i t waa his duty tu account with the Company in

Scotland.

In Wedderburn v. Wedderbumz ( 4 Myl. and Cr. 585) the Plaintiff had obtained a

decree in this court against some Defendants who resided and had property in Scotc

lurid, and Be instituted sui& there against them in respect of the same demand which

was the subject of the decree, and he was allowed to [428] prosecute those suits &o a8

to obtain such security as the Scotch Courts could give for the amount which. might

ultimately be found due. That is t4he course which ought to be adopted here, far

otherwise the Appellants may be entirely defeated by other Scotch creditors, who

being in no way whatever subjected to the jurisdiction of the Court of Chancery,

inay proceed at their pleamre in Scotland to enforce their claims against the estate.

There is nothing here to warrant the interference of an English Court of Equity.

966

The law of Scotland must prevail in this case.

CARRON IRON 00, v. MACLAREN cl8551 V E.L.C., 429

The Solici~r-general (Sir E. Bethell) and Mr. Andenson (Mr. Lewin with them)

for the ~ ~ p o n d ~ n t s . - T h % first principle in this case is, that the law of the domicile

of the deceased person ought to regulate all mattem touching his succession and the

distribution of his moveable effect%. The next is, that actor sequitur fomm rei, and

in the lifetime of Stainton the action against him must have been brought here; the

third principle is, that the farum of the deceased determines that where his executors

shall be sued; and the fourth, that where these ha8 been a judgment pronounced

by a court of competent jurisdiction in the matter discussed, another court is bound

ex comitate to give effect to that decision, especially where by its own principlw i t

would have pronounced a similar decree.

For a11

purposes this is an English as well w a Scotch Company. Its manufactory is in

Scotland, but its chief depots for sale are in England, and there is enough in that

respect to bring it within the principle of Alesander P. V u u ~ ~ u n (Cowp. 398), where

a Scotchman, who did not reside in England, but came here a t different intervals [e$)] and traded here, was held liable to the Bankrupt laws. The same principle

which governs cases in bankruptcy aught to govern this case; and Story (Cone. of

Laws, 8.8. 283, 284) shows that the proper place of legal proceeding is to be dis-

covered from the circumstances of each case, but that, as a general rub, the place

of business for the sale of goods ie to be preferred. Allen v. Cannon (4 B. and Al.

418), The Forth Marine ~ n s ~ ~ ~ ~ ~ e C o n z ~ a ~ y (9 Beav. 469), and Lewis v. B a l d ~ ~ i ~

(1 1 Beav. 153), are to the same effect.

If a man has a house of business for the sale of his goods in Cheapside, and a

manufactory ten miles off, there is no doubt that the proper place to serve him would

be in Cheapsida The place of business is the proper place of service, whether with

an individual or an incorporated company, and a corporation niay be subjected to an

attachment for disobedience to a mandamus, which has only been sewed on the town

clerk, The King v. The Corporation of Fowey (4 D. and Ryl. 614).

This is a

decree in an administratio~ suit, and is msde for the benefit of all the creditorrr.

One of them aftemards steps in, and, to give himself a preference, obtains an in-

hibition against the lands, and aa arrestment against the gooda of the debtor. On

the principle laid down in Martin v. .Martim (1 Vw. a l l ) , that is inequitable, and

cannot be permitted. It was upon the consideration that such would be the result

here, that the Mazlter of the Rolls (16 Beav. 288) granted this injunction; he said

that if he did not, the English creditors must allow the Carron Company to sweep

off the whole of the assets. It doe8 not appear that the inhibition or thewrestment

was complete when E4301 this injunction was granted, sob that the inhibition did

not give the Scotch Compaay power over the real &ate. Inhibition i s not properly

a proceeding in rem; there must be adjudication. An inhibition resembles what

a judgment in this country was before the 1 and 2 Vict. e. 110, gave i t the effect of

a lien cm laad. Z t is a mere legal prohibition, against parting with the lands, but

here i t is useless, for the lands are not vested by the Will alone in the trustees. Under

these circumstanc~ the equity far the R~pondents arises, and that equity is SUB-

cient if the Appellants are amenable to the jurisdiction. The c t ~ w of HarriSon v.

Gumaey (2 J. a~nd W. 563) (which relates to Ireland), and of Bushby v, H w d a y (5

Mad, 297) (which m l a b to Scotland), shew that they am EO. The fact of th5 Appel-

lants residing in Scotland is nothing. If the equity is such that i t could be applied

to restrain the proceeding in 8. cause in the Q U ~ ~ F S Bench, when they are in

England, they c m equally be rmt,rabned from proceeding in the Court of Seasion in

Scotland.

The principle on which courts of equity proceed in casea for the administration

of assets is stated in the judgment of Lord Redesdale, in Lurgan 8. Bowen (1 Sch. and

L. 296, 299): '' Courts of equity will not reatrain proceeding of creditors at law

against executors, to obtain payment of debts, merely on a bill filed by other creditors,

to carry the trusts of the Will into execution, until there is a decree; but from the

moment of the d e c m this murk p m d s on the ground thak the decree is a judgment

in favour of all &e creditors, and that all ought im be paid according to their

priorities a8 they then stand." That principle has been applied in the pressnt case,

buL the Master of the Rolls has reserved leave to apply to the Scotoli courts a re-

967

There is no reason to make this owe an exception to these principles.

Then as to the point whether this decree was right on the merits.

V H.L.C., Q31 CARRON IRON CO. W. ~ G L A ~ E N [1855]

servation which will satisfy any possibility of particular interest in the 14311

heritable estate. In Bell’s Commentaries (Bk, 1, Ch. 1) it is shown that the spirit of

the law in Scotland is, that every creditor wbob shall use proper diligence to obtain

~idjudication shall be entitied to be conjoined in benefit- with the rest. That i s an

iinswer to the &rgun~ent of the supposed injustice of this injunction towards the mere

Scotch creditors; they could not get priority by suing in the Scotch court alone

while this suit existed in England. The Appellaiit’s proceeding in Scotland is there

fore unnecessary and vexatious. In Peters v. Hartin ( 4 Sham and D. 107) the Court

of Session distinctly recognised this equitable exercise of the authority of an English

oourt over R domiciled Scotchman, and only proceeded to final judgment bemuse

the alleged proceedings in the Court of Chancery seemed to be a mere pretence.

As to what could have beeri done under arrestment, that was an open question,

till the case of The Gfobe ~ n ~ u r ~ r ~ ~ e C ~ ~ a n ~ v. a c ~ e n z ~ e (7 Bell’s App. Cas. 296),

nhich decided that arrestrnent would give the arresting creditor a preference over

those who had only cited the debtor ; but a t this moment the Scotch courta would not

allow any creditors there to carry off the whale of the property of the deceased after

a special decree made in relation to it by a court of competent jurisdiction ia t.his

country.

In cases of this sort the accounts must bs taken in the country where the exmutor

is resident. The Scotch courts have themselves adopted that doctrine, Poung v.

Barclay (8 Bell and Mur. N.S. ‘774), where the Scotch court did what the English

court has done here, namely, restrain parties from proceeding in a foreign court, the

courts in Canada. Hutchison v. The Aberdeen Ranking Company (15 Dunl. and

Hell (continuation of Shaw and Dunlop’s series), 1100), recognised a payment made

to the Englisli representatives of a Scotchman domi-[432]-ciled here, as made to the

proper forum of distributio-n. A11 these cases shew that the proper pIace for the

~dm~nist,ration f the effects of Wre d e c e a d is tbs country in x-hich ha waa resident

nnd died. The passag- referred to in Story (Confl. Laws, S. 512) do not contradict

this doctrine. The doctrine of the American courts

is well explained in Dawes v. Eead (I’ickering’s Rep. 128, 145), by C. J. Parker, who

says, “ We cannot think that. in any civilised country advantage ought to be taken

of the accideIita1 circuins~~nce of property being found within ita territory, which

niay be redednced to poasessioii by the aid of its ccl.urtsi and litws, to sequester the

whole for the use of its own subjecb or citizens, where it shall be known that all the

estate and effects of the deceased are insufficient, to pay his just debts;” and the

English bankrupt law, which gives a general distribution to foreigners as well as

subjects, is referred to with approval. That case, among others, is quoted by Story,

in a note, in which he says (Confl. Laws, S. 513 a), ‘‘ An exception to the general rule

grows out of the duty of every government and its courts to protect its own citizens in

the enjoyment of their property mid the recowry of their debts, so far as this may

be done without violating the equd rights of creditors living in a foreign country.’’

There the case considered is one where there has not been a f o m .of an administra-

1 ion and a judgment equally to administer; but where there had been. administration

granted by a competent court, the judgment shews that by that court the affairs

ought to ba administered, any claimant, of whatever nation, being freely allowed to

prove his claim. That just purpose would be defeated here by unduly favauring the

Scotch creditor. The case of Preston v. ~ ~ e l v i l ~ e (8 Clark and F. 1) does not support

the argument on the other side. The decision there is accounted for by the particular

circurnstances of the case. No such decree [433] could there have been made, i f the

new trustem in Scotland could have been appointed original executors, and the House

merely decided that they who were neither executors nor personal representatives,

but mere trustees, should not take the deeds out of the hands of tho.se who did fill

the former charecter.

[Lord St- Leonards.-Suppwe the trustees, in Scotland were properly the adminis.

tratars of the Scotch property, how would that affect your argument?]

No undue prejudice to any creditar vouid arise from that circumstance. The

Scotch administrator, i f the principal, might call on the ancillary English adminis-

&rator for the fund. The confirmation in Scotland does nak create a sepwah ad-

ministration. The case of T”Io.mpson v. The Lord Advocate (12 Clark and F. 1)

shows that the i n ~ r p ~ t a t i o n put by the other side on Prestoa v. ~ ~ e ~ ~ ~ t ~ e is erroneous ;

968

On thecontrnry, they sustnin it.

CARRON IRON CO. z1. MACLAREN [1855] v B.L.C., 434

for if correct, the legd duty would have been payable according to the, law of Soot-

land ; and a t all events it shows that where there are two repr~entations, the prin-

cipal and the auxiliary, the lakter must d i ~ h a ~ e the dutiee i m ~ s ~

on it by the former, which is also the d ~ t r ~ n ~ BO clearly laid down in

Uawes v. Eead tPicker~ng’s Rep. 128; see anfie). Jones v. ~ e ~ d e s (1 Phill. 724) i8

not in point, because there the Scotch Court had possession of the land, and the bond

was an heritable bond charged upon it. Suppose

an English creditor not to come in under an administra~ion suit here, but to i n ~ i t u t e

proceedings in a foreign country, this Court would restrain him. Such a person

would have been treated as having usurped the office of an executor, and would be held

responsible accordingly. In former times the principal executor granted an authority

to other persons resident abroad to collect tha portions of the estate f434] which &sted

where they resided. I f a creditor here got a ~ u d ~ ~ e n t here and then

Kent sbroad and collected the estate abroad, he would bo put into

the situation of a voluntary executor, and the Court would make him bring in afl thus

collected to the account of the general assets, Clark v. Lord ~ r ~ o n d , ~ e ~ ~ c ~ ~ a ~ ~ V.

Hun$& (Jac. 546), and Paxton T. ~ o ~ g ~ Q s (8 Ye . 520). As to ~ e ~ ~ e ~ b ~ T ~ v. Wed-

derbum (4 Myl. and Cr. 585f, the p e ~ i ~ i ~ n & proceed in the Scotch Courts was

given there because such proceedings were in aid of and not in opposit~on ttu the

proceedings of the Court of Chancery.

[Lard St, Leonards to the b r d AdvecatL..-I should like to ask you this q u ~ ~ t i o n :

Suppose what you say i s the general rule of law should prevail, and suppose the

decree here to be reversed, if the assets in Scotland were not sufficient to pay your

demand, would your Courts have regard to the rights of English creditors, or would

the whole fund be swept away by your demand?]

[The Lord Adt~ocate.-That would depend on the form of the proceeding. If the

Carron Conipany got preference, and the assets were insufficient, the Company would

take all.]

[Lord St. Leonards.-That is an answer, in fact. Then the question comes to

this, if the proceedings in Scotland go on, would there not in effect be two adminis-

trations?]

p h e Lord Advocate.--There is no right on any such account to inhibit the Com-

pany in a sace of diligence.]

[Lord St. Leonards.-As you regard the claim by diligence, then, unless all the

creditors go to Scotland to pursue the Scotch property, the Company might run

away with all the assets.]

[The Lord Advocate.--These matters could not be equalised but by a bankruptcy ;

but suppose the Company [436] did not obtain a preference, another creditor might

come in, and by obtaining a preference cut out the, Company.]

The Lord Advocate, in reply.-The proper forum i s not necessarily that of the

domicile. Suppose the case of a man domiciled and dying here, but with all his

psoperty in France, and with executors in Scotland, is t h ~ administration of that

property tu take place here alone? the executors would not come here, but go to France,

to collect the property, and go to Scotland to administer it there. The genera1

doctrine attempted to be laid down in this case cannot be carried into effect. The

proper forum is that in which “ the possession of the property is taken and held under

la-wful authority.”-Williams On Executom (vol. I , p. 356). In the present case the

property i s in Scotland, and no possession of it is lawfully held there. The existence

of the property in Scotland decides the question as it did in Attorney-General v.

Bouwem (4 Mea. and W. 171), where probate duty on foreign bonds was helld payable,

because a t the time of the death of the testator they were in his possession in this

country. If the forum of administration is the Scotch forum, then the injunction

cmnot stand. There is, in a< note to Preston v. YeZ;(v71e (8 (21. and Fin. 8 n. (c)),

something stated to have been uttered by Lord Gillies in that case which is app~rent‘ly

contradictory to the decision, and is Rot found in the ordinary reports of that case in

the Courts of Scotland.

[Lord St. Leonards.-But there can be no doubt that he uttered it; it is too

particular to have been put in without observation, and it, is besides very sensible.-

Lord 3raugham : It i s distinctly stated in the note to have been taken from the papers

printed in that case.]

E4361 On what principle could the j u d ~ e n t ~ have been given, except on the prin-

Try the case in another manner.

H.L, x. 969 31s

v ,E.L.C,, 481

cipfe that the forum was that of adrninistrat~on? If c r e d i t o ~ who can be reached

here can be enjoined from taking p r o c ~ ~ n ~ aga~nst a fund a b ~ a d , the creditors

there who cani~ot be reached here will carry off all the ~roperty.

~ h a n c ~ r y is really power^^ as to them, since it has not the funds in

and they are not within its jurjsdict~on, Why should they be put in a better posii

khan the rest? Here the injunction has dready subjected the Company to that

l ~ ~ b i l ~ ~ y , by p r e v ~ n t i n ~ the ~ ~ ~ l e t ~ o n of the p r o c ~ ~ i n g s against the real and personal

wb%. The Scoteb ad 8 3~0% a n ~ i l ~ a r y ~ but ~ r i n c ~ p a l , for nlost of tha

was a Xwhh debt, and i s t h e r e f ~ r ~ e ~ u l a ~ d by

ts of that law, th#refore, attach upon it, Don, v.

(5 Clark m d F. I), tmd the AppeIIan~ are not to be deprived of the benefit

of them merely b ~ a u s e agents for the, sale of the c ~ m ~ a n y ' s goods are to be found in

this country.

m e Lord C ~ n c e l l ~ r {July XI),

ground of the app~~cat~oi3 of the Ap

{for this purpwe, a t least, foreign) TV

~ a n c e r y , and that they ought to b

might think fit. There is no doubt. as to the power of the Court of ~ h a n c e ~ to

restrain persons w i t ~ ~ ~ n its ju r i sd~ct i~n from instituting or p r ~ e c u t ~ i ~ g suits irr

foreign courts, ~ ~ h ~ r ~ ~ e r the circu~stances of the case make such an ii~terposition

n ~ ~ s a r y or e x p ~ ~ e n t . The and will not suuffer anyone

within its reach to do what is CO

the act to be done may be, in poi

Where, there~ore, pending a l i t ~ g a t i o ~ here, in which comp~ete d i e f nwy be had,

a party to the suit ~nsi.~tutes p r o c ~ d ~ n ~ abroad, &e Courk of Chancery in general

c ~ n s ~ d e r s that act as a Yexat~ous h a r ~ s i n g of the opposite party, and rest,rains the

foreign p r o ~ d j n g s . This was the ground of the decision8 in ~ ~ r ~ ~ ? ~ v. Gurneg

(2 J, and W. 5631, and ~ e ~ ~ f o r ~ v. XembEe (I Sirn. and S. 7). In the former case a

decrw had been o b t ~ i n ~ for the, e x ~ u t i ~ n of the t r u s ~ of a deed for the benefit of

creditors, and a receiver of real estates in ~ n g l ~ n d and Ireland had been ~ p p o i n t ~ .

Some of the trustees a f ~ r ~ a r d s filed a bill in Ireland for e x ~ u t i n g the trust* of the

same deed. Lord Eldon r ~ t r a i n e d them from. p r o s ~ u t ~ n g tbat suit, on the ground

that it sought the me relief as might be had under the deoree obtained in this

country. But his ~ r d s ~ ~ i p said that he would not prevent them from filing a bill

in Ireland for the mere p u r p ~ e of calling on the r ~ e ~ v e r there to acc~unt for hie

receipts and p&ym~nt~ , without m a ~ ~ n g i t a ~ e ~ e r ~ l suit for a d ~ ~ ~ n ~ s t e r ~ n g the trust@

of the deed, In ~~€~~~~~~ v. X ~ ~ ~ ~ e , after la decree in this coun~ry for an ~ c o ~ n t " on

a bill to redeem a Vest India mortgage, Sir John b a c b would not s u ~ e ~ the r n o ~ g a g ~ ~

to prosecute a su i t in Jan~aica for ~o~eclosing t.he same ~ o ~ g a g e , on the ground that

full relief might be obtained under the decree in t h i s countr~. In both thew cases

the Court of C l ~ ~ n c e r ~ acted upm the dsctrine thaL it would not suffer ~ a r t i ~ to pro-

ceedings here to harass their opponent^ by suits abroad, which it eonsidered (wbet~er

in the latbr case just.ly or not, 1 need not &up to jnquire~ to be ~ n n ~ ~ s a r y .

Even though no deer# ha8 been o b ~ a ~ ~ ~ in this ~ u n t r y , yet i f a suit i ~ s ~ j t ~ t ~

~~r~~ pea^ ill ~~~u~~~ to ~~~~ ~ n ~ ~ e r the Bnda of justioe, the Court; of ~ ~ ~ n c e r ~

ha8 r ~ t r a i n ~ the foreign action, ~mpos~ng, however, terns which it has ~ n s i d 0 r ~

reaso~able for p ~ ~ ~ t ~ n g the party who was suing abroad,

Thus in ~ ~ ~ ~ i b ~ v. ~~~~ (5 Madd. 297), where a bill was 6Ied by the &Iigor in

bond, a ~ a ~ n s t ~ the 1~~~ and a person cl~iming under him by a s s ~ ~ n ~ ~ n ~ to have

the bond deI ive~~d up and c ~ n c e ~ l ~ , the Court would nod p a ~ ~ ~ t the ~ s ~ i g n e ~ of the

bond, who was a ~ c o ~ ~ a n , and had real estates in S c o ~ a ~ d , tn, p ~ o s ~ u ~ an actioion

~ A ~ ~ O ~ IRON W. 'U. ~ ~ ~ L A ~ ~ N [I8551

CARRON IRON CO. 'U. MACLAREN [1855] V H.L.C., 439

should make out his title ts relief, would be more complete than could be had in

Scotland. He therefore restrained the Defendant, the assignee, from going on with

the Scotch action, putting the Plaintiff on kms aa to gi.c.ing a4 judgment for security

to the holder of the band.

These are instPinces in which the Court has i i i~rfered, on principles of convenience,

to prevent lit.igation, which it has considered to be either unnecessary, and therefore

vexatious, or else ill adapted to secure complete justice.

[439] But even when there is no question as to the foreign litigation being or not

being necessary, or being or not being likely to be so effectual as litigation in this

country, still if a person within the jurisdiction of the Court of Chancery is ~ i ~ s t i t u t i n ~

proceedings in B foreign court, the insti tuti~~g of which is contrary to equity and good

conscience, the Court will, on a bill filed hero, restrain th0 prosecution of such foreign

suit, just as if i t had been a auit in this country. This w w the case of Lord ~ o r ~ ~ ~ ~ ~ ~ ~ ~ o ~

v. Soulby (3 Myl. and K. 104), where Lord Brougham, after fully considering the

p r i n c i p l ~ on nhich a court of equity acts in these cas@, r~8tr&ined the ~efendant ,

$he indorsee of a bill of exchange, from suing the Plaintiff in the Iriak courts on that

bill, upon certain sqaitable grounds, which would have warranted a similar injunction

against any action in the courts of this country.

The result of the authorities is, that if th0 ci~umstances are such as would make

it the duty of the Court to restrain a party from instituting proceedings in this

country, they will also warrant i t in restraining proceedings in a foreign court. But

though they will justify such a course, yet they will not, a8 I apprehend, make i t the

duty of the Court so to act, if from any cause i t appears likely to be more conducive to

substantial justice that the foreign proceedings should be left to take their course.

Thus in the case of ~ ~ ~ ~ o t t v. Lord ;Winto (6 Madd. 16)) where the Plnintiff, who was

heir of tailzie under a Scotch settlement, filed a bill to have his estate exonerated from

an heritable bond by means of the personal estate, Sir John Leach declined to restrain

proceedings in Scotland, where the question as to the right asserted wouId be more

conyeniently discussed ; and he directed the cause here to stand over till the result of

the Scotch proceedings should have been determined,

[a401 Lord Eldon in l ienmedy v. Cassilw (3 Swanst. 313)) and Lord Lyndhurst in

Joms v. Geddes (1 Phill. 1241, acted on the same principle.

Such being the state of the aut~orities, and the principfea d ~ u c i b l e fi-om them,

let us consider their application to the facts of tbe present case.

On the 8th of May 1852, a decree was made in % suit properly constituted for

administering the estate real as well as personal of the Testator, Henry Stainton.

The Appellants, the Carron Company, claim t o be oreditors to a very large amount 0 1 )

L ig estate, and, after the date of the decree here, they raised an action in the Court :if

Session in Scotland against the trustees and executors of the Testator for the purpose

of obtaining payment of their demand by means of the real and personal estate of the

Testator in Scotland. In general, after a decree undep which the creditors of a

lestator map come jxi and obtain payment of their demands, the Court does riot

permit D, creditor to institute p r o c ~ ~ n ~ s far himself. The decree is said to be a

judgment, vr in the nature of a j u d ~ ~ e n t , for all the creditors. The court takes

possmsion of the assets, and distributes them rateably, on principlm of equality,

giving, however, due eBect to any legal rights of preference which any one creditor

may possess. To aIlow a creditor, a f h r such a decree, to institute ~ r o c e e d ~ n ~ for

himself, would give rise to great inconvenience and injustice: it would disturb the

general principle of equal distribution which the court is always anxious to enforce,

and would leave the executors exposed to actions after the assets have been taken out of

their hands. Of the general justice, therefore, of the rule on which the court acts,

no doubt can, I think, be entertained. How the right of interfering by motion in the

suit in which the, [441] decree is made, instead of by a bill against the crediter to be

restrained, arose, is a point as tio which, though it was glanced at in the argument,

I do not stop to inquire. The practice i s f d ly established : its origin is matter rather

of curious speculation than af practical importance.

Well, however, as this rule is establish^, the questioa is, whether i t is a~plicable

to the case of th0 present App~llants? They are a corporate body, and so cannot,

perhaps, in strictness be Baid t o have any locality. Still I think that, for determining

&he present question we must consider them as w body locally situate in Scotland. If

*

97 1

v H.L,C., 441 CARRON IRON CO, V. M A ~ L A R E ~ Cl 8551

t*liey had been a mere company of traders carrying on trade at Falkirk, they would

certainly have been Scotch, and I do not think that they a m lesa so bscause they are

made a corporation by virtue of a royal charter.

Assuming this to be so, the first question is, whether there is any rule o r principle

of the Court of Chancery which, after a dacree for admini~ering b. Testator’s ansets,

would induce it to interfere with foreign creditor resident abroad, suing for his

debt in the courts of his own country? Over suoh a creditor the

courts here can exercise no jurisdiction whatever. He is alto get he^ beyond their

reach, and must be left to deal 8s he may with his own forum, and to obtain such relief

as the courts of his own country may afford.

This i s a proposition which cannot be controverted ; but w h i t is said is, that hers,

even treating the appellant^ as a Scotch corporation, still they must be looked at as

a body so ~ ~ b l i s h e d , or reprwentd, in this country, a.s to justify the courta here in

treating them as parties within their jurisdiction, and making orders on them

a~ordingly.

The nature of the comexion of the ~ p p e ~ ~ ~ with this country, appears from

certain &davits [to which his Lordship referred, see the substance of them statal

unte, 14421 p. 4201. From these aadavits i t appears that the Company has agencies

the agents hold goods of the Company of large value consigned to them for sale, but the

agents in no wise represent or act for the Company, except in selling the goods so

entrusted to them. The CGmpany has real property in London and Liverpool, and in

the county of Cumberland, The question is, whether this connexion with England

iiiakas i t fit that the Court should interfere to prevent the Appellants from exercising

their right of proceeding in the tribunals of their own country? I confass I can

discover no foundation for such a proposition. The circumstance that the Appel-

lants have property in t h i s country which niay be attached or s~uestrated, enables

the Court to make any injunction it may issue effectual; but I do not see on what

principle i t can make the issuing of an injunction just or expedient, if it would have

been unjust or inexpedient, s u p p ~ i n g there had been no property capable of being

sequestrated.

But here the Appellants not only had property in England, but agents for the sale

of goods, The existence of such an agency may, in

some cases, enable third parties to sue the prinoipals, though out of the jurisdiction,

by reaaon of their being for certain purposes represented by their wenb. But I can

discover no principle which would justify the Courts of this country in holding that

the existence of an agency here for the saIe of goods can deprive a foreign principal

of his rights as a creditor in his own country. It must be observed that we are deal-

ing with the case of a foreigner, or rather a foreign corporation, seeking no assistance

from the courts of this country. If the Appellants had come in under the decree, so

as to obtain payment ~ a r t i a l ~ y from 14431 the English assets, a very d i ~ e r e n t question

would arise, according to the doctrine in ~~~~~~~~p Y. Lord Huokr;ley (Jac. 546),

where Lord Eldon restrained a creditor, who had proved under an English decree?

from further p r o s ~ u t i n g a creditor’s suit in Ireland. It is s u ~ c i e n t to say that that

is not the ease before the Nouse. The Appellants are not restrained by reason of

their having sought or obtained any relief in this country, but solely because they had

agencies for the sale of their goods in this country.

Suppose the case of a Manchester manufacturer, with an agent. for the sale of hie

goods at Paris. If a debtor of the manufacturer were to die in France, leaving assets

there and in this country, i t would surely be ~ o m p e ~ n t for the ~ a ~ ~ u f a c t u r e r , as a

creditor (say by bond) of the deceased debtor, to sue his executors or heir in this

country so as to obtain payment, and to profit by the priority which he would derive

from his bond. The French courts clearly could not prevent this, if the creditor had

110 goods within their jurisdiction. It seems a strange anomaly that the accident of

the creditor having g o d s in the foreign country, and an agent them for the sale of

them, should prevent hint from having the means of recovering payment of a debt in

this country which he would have had if he had happened to have no agent nor anF

goods abroad.

s o again, put the cage of a person dying in France indebted; some of his debts

979

Certainly not.

* in parts of Scotland, and also in London aad at Liverpool, in both which latter places

Now does that vary the case?

C A R ~ O N IRON CO. 9. ~ A C ~ A ~ E ~ 1118551 V B.L.C., YZI

being such as give the creditor by the Iawa of France a priority, (I believe wagw of

semanb and f e s af physiciams come within t h i s clam,) we should surely be e x ~ i s i n g

a &range jurisdiction in this country if we shouId seek to restrain the French

cmditar froin enfomhg such a French right in his own courts ; nor E4441 can f 8ee

how the fact of his having an agent or goods in this country would vary the case.

In the course of the a r ~ m e n t , some reliance was placed on the case of ~ a ~ ) ~ d s o ~ v.

.Lady ~~~~~~s (2 Kwn. 509), and other cases to the same effect, where the Court has

held service of a subpena a t the town residence of a person who has a house in London

to be good service, although the party served may not a t the time have been regident

there, and may even have been out of the jurisdiction. !k%ese decisions can only show

by wa-y of analogy (if indeed they do afford such an analogy) that service on the agent

of the Carron Company in London, would be ,md service an the C o m p a ~ ~ ~ itself,

though. out of the j u ~ i ~ i c t i o n . But they have no bearing an the quwtion, whether

the equity sought to be enforced is one which cm prvperly be a-pplied towards a

foreigner domiciled abroad.

On these pounds, I think that the Court below ought not to have granted an

injunction, and that on the motion of the Carran Company t5 dissolve the injunction

with costs, the Court ought to have made an order in conform~ty with the terms of the

notice of motion. 1 therefore move your Lordships to refer the case back to the

Court below, with a d ~ l a r a t i o n to that effect.

Lord Brougham.-My Lords, f take it to be perfectly clear, in the first place, that,

the Respondent here was the mere agent of the Carron Company, for the sale of Ihe

goods of that Company. That Company is a Scotch corporation, which wae incor-

porated by charter under the union seal of Scotland about the year 1773, and has

carried on business under deeds of partnership, one dated in 1760, the ot7her in 1771,

and is as much a corporate body and E4453 as well known as a corporate body in

Scotland as are the East India ~ o m p a ~ ~ y and the Bank of England in ~ngland .

Mr. Stainton, one of the Respondents, describes himself as “the manager in

London of the Cwron Company.~, What he means by ‘‘ the m a ~ a g e r in London,”

is cletbrly shown by his own letter, as we11 as by the affidavit of Mr. Brodie respect-

ing his connexion with the Company and the relation in which he sthod towards it.

He states that he did not in any way represent the C o ~ p a i ~ y ; that he was not

authorised to act in any way on its behalf, except in selling goods entrusted to him

for sale like otker agez~ts; and.that he was paid by ,znnual salary, and had nothing

whatever to do with &he management of affairs of the Carron Compa~~y in Scotland,

where the whole of the Company’s business is conducted, regulated, directcd and

solely carried on by the company’s manager, subject to the control of the general!

court of proprietors meeting there under the charter. The1 order of injunction was

served upon the person thus described. They might just as well have served it upon

all the other sellers of the goods of the Carrm ~otnpany, who, acting in that capacity

like the ~espondent, had no concern whatever in any way with the management^ or

direction of the affairs of the Company.

It appears that in the month of May 1826, an a r r a n ~ n i e n t had been made for

giving the London agent of the Company a salary instead of a c ~ ~ n i s s i ~ n , since

which he has been merely a salaried agent; and it is distinctly proved that thin

~espondent himself was not even x shareholder in the C~mpany.

1 am of opinion with my learned Friend, that though it is not denied that the

Court of Chancery has power in certain cases to restrain parties within its jurisdic-

tion from proceeding in other c~untries, (which for the present p u ~ - ~ ~ ~ 6 ] - p o s ~ we

will call foreign countries,) yet that depends on the circumstances of each case. And

my opinion i s in accordance with that of my noble and learned Friend, that here

those circumstances do not arise which call for or justify that int6rposition.

The case of ~~8~~~~ V. ~~~~~~~ (5 Madd. 297)’ which in my apprehension goes to

the very verge of the law on this point, is yet most materially different from tits

present. Sir John Lea&, then ~ i c ~ c ~ ~ n c e l ~ o ~ , th re said thatz he considered that

it was the same question to be decided in Scotland &at would be decided here, and

that it was a question purely of English law, which couid be dealt with onIy as

makter of evidence in the courts in Scotland ; whereas here it might be dealt with

as a question of law, known to the courts which were to decide it, and that it was,

i n his opinion, on all accounts, expedient to restrain the proceedings in Scot~and,

in order that the matter might be finally disposed of here. There was mother

973

*

v B.L.C., 441 GARRON IRON CO. v. MACLAREN [1855]

material difference between that case and the present. The case was, as it were,

turned round. Mr. Bushby, a Scotch landowner, was the party who there sought an

injunction to restrain the English party, the assignee of the bond, from proceeding

against him in Scotland. It was as if the Carron Company had been the applicants

here against a party within the jurisdiction here to restrain him from proceeding

in Scotland against them.

My noble and learned Friend has referred to the different law that prevails in the

two countries, France and England, with respect to workmen’s wages and other pr*

ferable claims. There is another circumstance which illustrates this case equally

well. Persons who in France supply goods, either in furnishing a house or towards

building a house, or who are themselves coiinected in [:447] building a house, are pre-

ference creditors. They have upon the house and on the land upon which it is

built a preferential right, and are paid as preference creditors. Now this might

very well happen, An honourable and learned friend of ours, Mr. Cutlar Ferguson,

had a house at Boulogne. He was also a domiciled E n g l i s ~ a n or Scotchman, and

R Member of Parliament. The parties who had furnished his house a t Boulogue.

might have had an agent here a t the time of the Great Exhibition, and they might

have sent over goods to exhibit here, and those persons through that agent might

therefore, according to the doctrine maintained in favour of this decree, have been

restrained from proceeding in the courts of France for the benefit which the French

law unquestionably gives them as persons having furnished goods far the fitting up

or the adornment of his house.

Upon the whole, I think that this case goes a great deal further than any of the

former cases ; that i t is not justified upon any principle ; and 1 am therefore clearly

of opinion with my noble and learned Friend, that this order of the Master of the

Rolls is erroneous, and that the matter ought to be sent back to him, with instructions

accordingly. me process of contempt is, in its nature, 8

quasi criminal proceeding. Now, suppose the injunction is issued, and suppose,

notwithstanding that injunction, the party goes on and breaks the injunction, he is

liable to be committed for contempt. Now, here I will suppose the Carron Corn-

pany in Scotland to disregard or, as it were, contemn, the injunction, and to proceed

notwithstanding. Surely it cannot be said that, as against. the agent here (who is

but a salaried co r re s~nden t for the sale of goods) against whom this proceeding

is taken-that is to say, who is served with the notice of the E4481 injunction, and

who is here within the jurisdiction of the Court-surely it can never be contended

that, as against him, a proceeding which is p u s i criminal in its nature, could be had,

in consequence, not of anything which he did, but in co2sequence of what hi8 prin-

cipal, the Carron Company, did in Scotland, in violation and breach of the injunc-

tion.

[Lord St. Leonards.-It is not contended that the Court could commit the agent

in such tt case.]

Lord Brougham-1 am quite aware of that ; but still niy argument is, that accord-

ing to the principle of this decree, the agent makes hiniaelf liable if he is within the

jurisdiction. It is, no doubt, because the agent is within the jurisdiction, and the

Company has property within the jurisdiction, that this proceeding is taken. In

Walker v, Lord Grosvenor (7 Term. Rep. 171 ; see also Catmur v. ~ ~ a ~ c h ~ ~ ~ l , id.

448), the Court of King’s Bench held that privilege of Parliament was a proteotion

against a process of contempt for not performing an award which was made a rule

of Court. That was on the ground, no doubt, that it was a civiI proceeding, and that,

therefore privilege should enure, to protect the party from the proceas of contempt.

The Court of Chancery has elected to go against the person, and not to, proceed by

sequestration. My noble and learned Friend will recollect a, case in which I rather

think he was counsel, and which 1 decided, where a party was committed for con-

tempt in refusing to obey the order of the Court, although he had the privilege of

Parliament. I only mention that as an illustration of the doctrine on which my

noble and learned Friend, who has moved the reversal of the decree, proceeds, namely,

the difference between the party on whose residence here the jurisdic~ion is mainly

grounded, being an agent, and not being a principal.

[49] Lord St. Leonards.-The Testator, the debtor in this case, was an English-

974

I will just add one other argument.

CARRON IRON CO. V. NACLAREN [1855] v E.L.C., WO

ntan ; he was domic~led here. This Will has been proved by his executors, both in

England arid Scotland. His real estate, in Scotland, mould be administered here,

as we have the heir within our jurisdiction ; and the estab is bound by the Will

and the assent of the heir. The suit here was by the creditors; the object a fa i r and

equal distribution amongst the creditors; and there is no allegation of deficiency

of assets. The suit, gave the Court in this country complete jurisdiction as regarded

the whole of the property, because i t had here the personal reprasentatives of the

Testator, persons who’ filled that character both in England and Scotland. The de-

cree in the cause here, which amounts to a judgment for a l l the creditors, was pro-

nounced several months before the Company commenced proceedings in Scotland.

The object of the Company is to obtain in Scotland by this suit a preference over

the other creditors as regards the Scotch property; and probably thme persons prefer

the Scotch tribunal for the trial of their righta. The first question is, were the Appel-

lants within the jurisdict~on, so as to authorise the Court to enjoin their p r ~ e e d i n g s ~

They are incorpor~ted, and they are called a Scotch corporation ; their manufac-

tories are in Scotland, but they have houses of business in England, which they

necessarily carry on by agents or managers; and they have real as well as consider-

able personal property in England. The Testator was a shareholder a t his death, to

the extent of &$O,OOO; and his representatives are entitled to his shares, and are,

in truth, partners in the concern. I think that thia Company may properly be deemed

both Scotch and English. It may, for the purposes of jurisdiction, be deemed to have

two domiciles. Its business is necessarily carried on by agents, and I do not know

why its domicile [40] should be considered to be confined to the place where the

goods are inanuf actured. The business tramacted in England is very extensive.

The places of business may, for the purposes of jurisdiction, properly be deemed the

domicile. The corporation cannot have the benefit of its place of business here with-

out yielding to the persons with whom i t deals a corresponding advantage. The

claim of the Company is in respect of dealings here. Service on one meniber of a

corporatien is good service. Upon general r~ason~ng , I think that the Company

may, for the purposes of the suit in Chancery, be treated as within our jurisdiction.

It should be borne in mind that this is not a dry question of staying proceedings in

Scotland, nor a case of succession to estate, but i t is a case in which the Court here

has jurisdictien over the persons in whom all the property in both countries i%

vested; and i t offers to the Appellants perfect equality with the other creditors. In

a case of bankruptcy, that of the Royal Ua9~k of Scotland v. Cuthbert and Other8 (1

Rose, 462, 11 . ; heard and decided in the Court of Session, November 1812 and

January lsln), there were partners in Scotland and England; there were two

domiciles ; and upon international law it was held that an English conimission of

bankrupt operated on the property in Scotland ; and the English rules in bankruptcy

were held to govern the property in both countries, although their laws differed in

regard to the distribution amongst creditors. This has frequently been acted upon

and submitted to in Scotland, as a less evil than that of having two 5d~inistrations

amongst creditors, to b0 carried int5 effect under different rules of law. And I.

should have collected from Preston Y. ~ ~ e l v i l l ~ (I6 Shaw and D. 472 j 8 Cl. and Fin. I),

that the Scotch Judges would, in this case, upon the comity of nations, have sub-

mitted to the jurisdiction of our Court E411 over the Scotch property. Rut after

the reversal of their decision in this House, although, as I shall show on 5 distinct,

ground, I do not rely upon that view of ths case.

No direct authority was cited to show that the Company was or was not to be

deemed within the jurisdiction. But cases were referred to which have a consider

able bearing on the question. In Davidson v. Lady Hastings (2 Keen. 502), i t RP

peared that Lady Hastings was domiciled in Scotland and meant permanently to

reside there; but she had a house in London, and service at that house was deemed

good service, without prior leave being obtained for that purpose, i t being deemed

unnecessary, as the notice reached hei.. Now there is some analogy between the

cases. There was a domicile in Scotland, a hohse in Lendon for business, a service

here, at that house, and the notice served actually reached the party. In G w i s v.

~ a ~ d ~ u ~ ~ (11 Beav. 153), the business of an Irish railway company was carried on in

Ireland, and fourteen directors out of fifteen were resident there, yet, upon a question

.of amalgamation, an order here, giving leave to serve the Company in Ireland with

975

V H.L.C.,

a s u b ~ e n a , was held to be valid. So I n re Bad& a d ~ a Z e ~ ~ ~ a ~ ~ a y ~ o r n ~ q ~ ~

(2 Mac. and G. 169; 3 De G. and S. 127), the railway was in Spain, and the affairs

of the Company were to be conducted by directora in London and a committee in

Madrid, and the l%XhanceIIor treated it, as a case subject to English law, or &feast

as not exclusivefy subject to Spanish law, and his opinion was confirmed by that of

the Lord Chancellor. And in like manner, the affairs of the Forth Marine Insurance

Company (9 Beav. 469) were Found up in this country after bankrup~y. "be

remedy against a corporation is by d ~ ~ ~ r ~ ~ a ~ a s , and therefore you can bind the COIU-

pany by operating on E4621 its property here, just as in common cases you bind

parties by operating against their persons,

Besides these grounds, in favour of the jurisdict~on, it appears to me that the

Company has submitted to the jurisdiction. For, instead of making a conditional

or special submission to the jurisdiction of the Court here, the Appellants gave

notice that they should move to have the order for the injunction discharged, or

that they might be at liberty to proceed in their action in S G ~ t l a ~ d ? so fa r only as

m ~ g h t be necessary f w the purpose of having their claim a d ~ u d i c a ~ d by the C ~ u ~

of Session, and for obtaiaing security for their demand, They appear, therefore,

to have submitted in the alternative to talre a limited order from the Court of Chan-

cery. It i s hardly necessary to observe that the service was proved in both Scotland

and England, and was admitted by the Appellants ; and I have aIreadp shown that

the want of previous leave to serve i s immaterial, as the notice actually reached

them.

I€, then, the Company is to be treated as within the jurisdiction, and ta have

been properly served, we have still to consider the principal question, viz., whether

the Court of Chancery had ~ u r ~ s d ~ c t i o n t stay the proceedings of a creditor in Scot-

land against the Scotch property; and upon this point I entertain no doubt. The

cases, perhaps, admit of elassificaticln.

Where the question is not one of priority, but U€ convenience, for the trial of a

disputed right, the Court decides upon the jurisdiction, according to the merits of

the case. Bushby had

given a bond to ~ u n d a y , to secure a gainb~ing debt, and Munday assigned the bond

ta Clowes. He proceeded, in Scotland, against Bushby, who was a Scotchman and

proprietor, of r e d estate. Bushby filed a bill here to have [&3] the bmd set aside

and delivered up. Upon a motion f o r an injunction to s h y the proceedings in

Scotland, the! counsel asked whether the Court could stop proceedings in Scotland ;

Sir John Leach answered, '' I think i t may; " and he ultimately, after an elaborate.

argument, granted the injunction, because het considered that the validity of the

bond could best be tried in this country. He laid it down generally, that where

parties, defendants, are reRident in ~ n g l ~ n d ? and brought by subpoena here, this

Court has full authority to act upon them personally, with respect to the subject of

the suit, as the ends of justice require, and with that view to order them to take, or

to omit to take, any steps and proeeeding-a in any other court of justice, whether in

t h h .(%It in a foreign country. But the p ~ a i n t ~ ~ was

made to submit to such terms in Scotl~nd as would secure to Clowes the preferable

lien which he might acquire by his suit on the land there, if het should ultimtxtely

establish any demand on the bond. This case was followed by Lord ~ o ~ ~ ~ r € ~ n g ~ o ~ ~

v, ~ o ~ ~ y (3 Xyl. and K. l04>,which also depended upon the validity of a security

for a gambling debt; and an action in Ireland, on the security, was, upon the merits,

enjoined by my Noble and learned Friend oppo&te, after a review of the early

authorities; and the appeal from the decision of the Vice-Chancellor was dismissed

with cwts.

In ~ e ~ n e ~ y v. Cassi& (2 Swanst. 313), although Lord Eldon, under the cir-

cums~ances, dissolved the injunction which he had granted, yet he had no doubt about

the jurisdiction, and he held that it did not contravene the act Q€ union, which

opinion was afterwards adopted by Sir John Leach, and that is now a set$tled point.

[4@] So in Jones v. Geddes (I Pliill. 724). the Vice-Chancellor had panted an in-

junction against an heritable bond creditor who was proceeding in Scotland aga ins~

&e ~ i ~ ~ s in bankruptcy of the obligor, who had real estate in Scotland, The

bond was alleged to have bean executed far a colourable ~ons~deration. Lord Lpd-

hurst dissolved the injunction upon a simple consideration of ths balance of the

916

CARRON IRON CO. tL MACLAREN [1855]

~ ~ s ~ ~ ~ y v. ~ ~ n ~ a y (5 Madd. 297) i s a good example of this.

That, I think is the true rule.

In these cases there was no conflict between creditors

CARRON IRON CO. v. MACLAREN [ 185 53 v H.L.C., 486

conveniences and inconveniences of the different courses to be adophd, but he fully

recognised the jurisdiction,

The next class of cases in xrhich the power has been without difficulty exercised,

is, when the same person has recourse to the two jurisdictions for the same service,

as in Narrkon v. G m e y (2 J. and W. 563), where trustee6 for creditors having

obtained a decree, two of them were restrained froiii proceeding with a similar

bill in Ireland, And in Wedderburn v. Wedderburn (4 Myl. and Cr. 585), parties

who had in a suit here established their right against the Defendants and had

obtained an order fcr an account, afterwards instituted proceedings in Scotland

against some of the defendants for the same demand ; a t the Rolls an injunction was

obtained against their proceedings in Scotland, and Lord Chancellor Cottenham

thought the order quite right. There could, he said, be no doubt that the general

rule precludes parties from proceeding in any other court for the same purpose for

which they are proceeding in this court, whethar the other proceedings are taken in

this o r any other country. 3 u t having regard tct. the domicile of the parties and the

possession by some of real estate in Scotland, the Chancellor, as upon an original

motion, allowed the proceedings in Scotland to proceed as fa r as might ba necessary

for obtaining security against the property there to answer the demand under the

decree here.

[&SI ‘Ike last class of cases includes thwe more directly bearing upon the case

now before the House, where a creditor came in under a decree here in an adminis-

tration suit, and yet proceeded in an action in Scotland, which he had commenced

in ignorance of the decree, the Vice-Chancellor enjoined the proceedings in Scotland

with costs, an order which was affirmed by Lord Cottenham with costs. The claini

of the creditor was still under the consideration of the Master, and it was considered

that the creditor was harassing the estate by proceeding against it in Scotland.

This was the case of Grahum v. Maxzuell (1 Mac. and Gor. 71). If a creditor is

compelled to coma in under a suit here the same principle applies.

In the previous case of 3 e ~ ~ & ~ r n ~ v. Lo d le^ (Jac. 546), where a creditor,

who had a specific charge upon a part of the htator’s real estates, came in under

a decree in a general administration suit, and then claimed to ppove in a creditor’s

suit, which he had instituted in Ireland, Lord EIdon restrainedjlim from proceeding

with the latter suit, and made him pay the costs. The decree here was considered

to be consistent with the specific right of the creditors over part of the Irish estate.

But of course questions of Scotch law, for example the right of Scotch estates

to be exonerated out of the personal estate, must be decided according to Scotch law,

and, if practicable, in a complicated case, by the court8 in Scotland. This is shown

by Elliott v. Lord Mint0 (6 Mad. 16).

Nor will the rule operate to destroy any priority to which, from the nature of

his security, a creditor in Scotland or Ireland is entitled against the assets in either

country according to the law of the country, although they may come to be distributed

here. Therefore, in Gook v. [&SI Gregson (2 Drewr. 286), when the same pereons

were executors in England and Ireland, and proved the mill in both countries, and

the testator was domiciled in Ireland, the executors brought to England considerable

property from Ireland; and in a creditor’s suit here for administering the testator’s

estate it wag held that a judgment creditor in Ireland was, as against the proceeds of

the Irish property, entitled to priority in this suit over simple contract debtors.

The last case to which I shall refer your Lordships is the one 80 much relied upon

a t the bar, Preston v. Lord Melville (16 Shaw and Dunl. 472; 8 CIark and F. I).

There was property in that case in Scotland and England, and the same trustees were

appointed over both properties, but they renounced. Administration was granted in

England to another person, and there was the usual decree in an administration

suit here instituted by the administratrix; the Court of Session appointed new

trustees over the property; and afterwards the Court of Session declared that the

English personal estate was to be administered in Scotland, but. that was reversed

in this House by a declaration that the property in England ought to be adminia-

&red by the administratrix under the authority of the Ecclesiastical Court here.

This left open the question as to the distribution by the Scotch court of the residue,

if there ehould be any, after payment of the debts here.

That was a case in which the court in Scotland attempted to operate on an ad-

977

v B.L.C., 667

niinistratris in England. There was no legal representative of the English property,

and it was desired to be transmitted to Scotland for distribution. In the case before

your Lordships the same persons have obtained probate both in Eng€a~~d and Scot-

land, and no question arises as to the persons to administer the funds, and the real

estate in Scotland will be represented in the [&T] suit. The question is, whether the

suit here, which is for the benefit of the creditors, and of which the Appellants will

have the benefit, does not, as they are amenable to the jurisdiction, prevent them from

wailing theniselves of any preference over the Scotch portion of the propexty. The

cases abunda~~tly prove that the jurisdiction of the Court here i s indisputable to

stay unjust or harassing proceeding3 in Scotland when justice can be1 administered

here. If a creditor here were to attempt, in the like case, to obtain a priority at

law, equity would enjoin him and compel him to come in equally with the other

creditors. In such a case the jur~sdict,ion is perfect. But it' is qua l ly operative as to

Scotland when the creditor is within the jurisdiction. This i s not a case in which

your Lordships are asked to take away any specific right of a creditor against the

Scotch estates, or to prev the priority to which he w m entitled a t the testator's

death, for the onden dents simply require ~ u a l i t y as between c redhr s of q u a l

degree. A distinction has been drawn between Scotch and English creditors, but a~~-72y

oreditor is a t liberty, subject to the power of the English court, to resort to the

Scotch court, and obtain a security on the estates there, just as any Scotch creditor

may come in under the decree hsre,

It is, howe~er, objected by the Appellants, t.hat qumtions of Scotch law may arise

in this case, to which it may be answered, and so may questions of E n g l ~ ~ h law arise

if the case is taken to the Scotch courts. But the main objection, assuming the juris-

diction, was, that if the Appellants are restrained, other creditors, who might not

be within the jurisdiction of the English court, might proceed in Scotland, The

jurisdiction has, as we have seen, been exercised with prudence, so as to meet the

exigencies of each case. The hppdlants, who are entitled to the benefit of the suit

here, cannot be allowed to retain m y [U] advantage over the other creditors here

by rmorting to Scotland. But it would, of course, be wrong ta restrain them from

o b t a i n ~ n ~ such a security on the Scotch estates as will place them at least on a level

with other creditorg in cotl land, although whatever they thus obtain must be

brought into the general assets here for the benefit of all. The Master of the Rails, I

think, intended to provide for this right, although his order does not contain aiiy

such proviso. In this respect this order should be amended by adding a dedaration

that the Appellants shall be a t liberty t~ take such steps as they may be advised to

swure their debta on the estates tltere, but subject to account for all the property they

shall obtain in or from the Scotch estates, in the suit in the Court of Chancery, as

that Court shall direct; and with this declaration the case should be remitted to the

Court of Chancery to do therein as may be just.

My Lords, with reference to the coi~c~udir~g remarks of my noble and learned

Friend opposite, I would take the liberty of observing that them is no question about

conimitting the agent; nor i s the jurisdiction here, because the agent is resident here.

The jurisdiction, if it exists, i s because the appellant^ am here by their houses

of business, aad by their agents, just. as they are in Scotland by their house uf

~usiness and their agents. They carried on as great a business here as in Scotland.

They ina~~ufactured in Scotland and sold in England. What would be the use of

r~~anufacturing if they could not sell the goods they nianufactured? I have been

unable to discover which i s the particular residence of this company. The money

of the Appellants is made by returna coining from England. They manufacture in

Scotland. The inembers of this co~ora t ion do not make the iron; they do not

reside in the house. They are nobody; in fact, E4591 they are represented by

their seller, but, they are not, in other respects, persons dealing a& individuals.

Their business is carried on in London just as much as it is carried an in Scotland.

It i s not therefore a question of attacking the agent as agent. If the service upon

the agent is 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. Tiiere may be two domicih and two juris-

dictions; and in this case there are, a8 I conceive, two doiniciles and

a double sor t of jur~sd~ct~o11, one in Scotland, and one in Eng~and; and for

978

CARBON IRON CO. V. ~ ~ ~ ~ R E N [lsss]

~ ~ O ~ ~ ~ ~ A ~ b ~ A Y ~ R ; ETC., OF) 'U. HOdMES [lSSS]

the purpose of c a r ~ i ~ g on their business, one i s just as much the domicile of the

corporation as &e other.

My Lords, I have thought it ne cess^^^ to state to your Lordships the view which

I take generally of this case; and rn I differed in opinion, I thought it respectful

to my noble and learned Friends to place upon paper wh&t I have now read to

your Lordships. Of course my opinion will go for nothing, as the decision below

will be o v e r r u l ~ . But. I would subm~t to my ncrbfe and learned Friends that the

case, in the view which Uiey take of it, cannot be remitted. If the view which I

take should prevail, i t ought to be remitted; but as my noble and learned Friends

are af opinion that the injunction ought not to have been granted they should

reverse the order of the Master of the Rolls, and so relearn the Carron Company

from all obligation in respect of the suit,.

Lord Brough:hnm.--As to what. my noble and learned Friend has said about his

opinion going for nothing, I must observe that it only goes for i ~ o t h ~ n ~ as regards

the d ~ i s i o n , but that o the~I i se the opinion of my noble and learned Friend,

e B p ~ ~ a l l y backed as it i s by his very able a r ~ m e ~ ~ , must go for a good deal. I am

very sorry thata we [4m] should differ upon the dubject; i t i s R. very i ~ p o r t a n t

din~~nution to the value of our judgment.

Lord Chancellor.--The order will be a c ~ r d ~ n g to the prayer. Discharge the

order of the 15th November 1852 and the 6th of December 1852. That d~ssolves

the i~ijunctjon grai~ted by the order of the 15th of ~ o v e m b e ~ . The costs to be paid

by the ~espondents.

fl H.L.C.,

Eouse of Lords' Journals, 11 July 18%.

L_ -.-

The MAYOR, B U ~ ~ E S S E S , etc. of D I t O G ~ E ~ A , - ~ ~ u ~ ~ i ~ s if& Error ; SAItAH

OLIVIA KOLMES, Admi~istratrix of JOSEPH HOLXES, Deceased,---

~ ~ ~ e ~ ~ t ~ ~ ~ € &$ Ewor [July 2, 9, 26, 26, 18851.

[Mews' Dig. iv, 673, 674 ; viii. 706.1

Co~po~u~ion--Leus&s-" ~~~~e~~~ JJ-r' ~ ~ ~ 0 ~ ~ ~ ~ ~ ~ ~ ~ '

By the 6 and 7 Will. 4, c. 100. (passed in August 1836), no con~eyanc~ of

lands in certain corporatibns (of which Drogheda was one), was to be made,

unless in pursuance of a c ~ v e n ~ n t , contract, or ugreenient made, or a resolu-

tion of the co~ora t jon duly entered in the corporate books, before the 16th

Februar~ 1836. This provision was e o ~ ~ ~ n ~ e d by s u c e ~ ~ s ~ v e statutas, and

~ncorporated into the 3 and 4 Vict., e. 108 and a. 109. The Corporation of

~ rogheda had from time to time passed resolutions as to the g r~n t ing of

Ieases of the corporate property, and on the, 20th April 1801 passed il resolu-

tion (which was duIy entered in the corporate books), directing that " the

auditors and viewers should on reporting on petitions for the renewals of

leases take inte considerat~on the value of the premises, and value the same

at the full value betweexi man and man, and that the pet~tioner so apply~i~g

shall be theo entitled to a. renewal;' on certiiin terms thereilk ~ e r ~ t ~ o n e d ,

'' and that all repo-rts shall hereafter be received a t one assembly, and taken

into consideration not sooner thair the then following quarter assembly."

A lease had been granted in 1785 for 61 years; in 1841 a petition was

presented for its renewal; r461J the petition was referred to the auditors

and viewers, whose report was presented on the 7th J a n u a ~ 1842, and on

the same day a resolution ordering the renewal was passed:

Reld, that this was not a resolutio~ which brought the case within the excep-

tions in the statute; for it merely bound the ~ o r p o r a ~ ~ o n t receive ths

report, and afterwards to consider the propriety of acting upon it. Tbcr

resolution need not be a contract.

Lord St- Leonards, This resolution- was insufficient, although i t might

nots be necessary that the resolution should be such 8s would form a binding

contra~t, e ~ i f o - ~ e a ~ ~ e in a Court of Equity: and farther, the resolut~oi~,

such 8s it was, had not been compl~ed with, for the lease was granted a t

the same meeting at which the report of the auditors and viewers was

presented.

979