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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Paton v. Neill Edgar & Co [1873] ScotLR 10_461 (27 May 1873) URL: http://www.bailii.org/scot/cases/ScotCS/1873/10SLR0461.html Cite as: [1873] ScotLR 10_461, [1873] SLR 10_461 |
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Page: 461↓
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Held by Lord Ormidale (and acquiesced in) that an unincorporated English firm, against which jurisdiction has been founded by arrestment, may be sued in the Scotch Courts socio nomine, although in the English Courts it cannot be so sued.
The defenders in this case were an unincorporated trading company, carrying on business in England, and they were sued socio nomine; none of the individual partners being called as defenders. Jurisdiction had been founded by the arrestment of funds in this couutry belonging to the firm. In the defences it was averred that “by the law of England such companies or firms cannot be sued except by action against the individual partners thereof by their proper christian and surnames;” and it was pleaded—“1. The action is not competently laid, in respect the defenders' firm is an unincorporated English company.”
This plea the Lord Ordinary repelled by the following interlocutor, which was acquiesced in:—“ Edinburgh, 27 th May 1873.—The Lord Ordinary having heard counsel for the parties on the defenders' first plea in law, and having considered the argument and proceedings: Repels said plea and, under a reservation in the meantime of all questions of expenses, appoints the case to be enrolled in the Lord Ordinary's motion roll that a diet of proof may be fixed.
“ Note.—By their plea in law, now repelled, the defenders mean, as was stated by their counsel, that as by the law of England an ordinary trading company, such as they are, unincorporated by statute or otherwise, cannot be sued in England, and as action in England lies against the individual partners alone, the present action, directed as it is against the ordinary trading firm of Neill Edgar & Coy. is incompetent.
The Lord Ordinary considers it unnecessary to enquire or determine what the law of England is on the point referred to, as he holds it to be clear that, as matter of remedy and mode of procedure, it must be ruled in the present case by the law of Scotland, where the action has been brought. It is not disputed that there is such a firm or company as Neill Edgar & Coy.; and neither is it disputed that funds belonging to that company have been arrested juridictionis fundandœtho causa. The action being, therefore, in itself in due and competent form according to the law and practice of Scotland, the Lord Ordinary can entertain no doubt that the lex fori applies and must rule the question. All this being so, there was no alternative but to repel the defenders' first plea in law, and were it necessary, the Lord Ordinary might refer as authority for the course he has adopted to the case of Forsyth v. Hare & Coy., 18th November 1834, 13 Sh. 42. It is true that the point attempted to be made for the defenders here does not appear to have been raised in that case, for the reason, no doubt, that the law and practice was thought too clear and well settled to admit of its being raised with any chance of success. Cases are accordingly of frequent occurrence in this Court of actions by and against unincorporated English companies. The pursuers were an English unincorporated trading company in Thomson, Bonar, Coy v. Johnstone, 30th November 1836, 15 Sh. 173; and in Wheatcraft Turner v. Hawthorns & Coy., et e contra, 3 Scottish Law Reporter, p. 30, an English unincorporated company were pursuers of one action, and the defenders in another, but both were sustained as well brought into Court, in respect, among other authorities, of the decision in Forsyth v. Hare & Coy. In the cases of Wheatcroft & Turner v. Hawthorns & Coy., et e contra, Lord Barcaple, whose judgment was acquiesced in, appears to have taken the same view of the point in dispute, and disposed of it in the same way as the present Lord Ordinary.
The case of the Edinburgh and Glasgow Bank v. Ewan, 14 D. 547, founded on by the defenders, does not appear to the Lord Ordinary to be in point, for there no English or other foreign company were called as defenders,—jurisdiction not having been, as in the present instance, founded against any such company.”
Counsel for Pursuer— Mr Burnet. Agent— Mr Macgregor, S.S.C.
Counsel for Defenders— Mr Pearson. Agents— Webster & Will, S.S.C.
