Pilbrow v Pilbrow's Atmospheric Railway and Canal Propulsion Company
| Jurisdiction | England & Wales |
| Judgment Date | 21 January 1848 |
| Date | 21 January 1848 |
| Court | Court of Common Pleas |
English Reports Citation: 136 E.R. 292
IN THE COURT OF COMMON PLEAS
PlLBROW V. PlLBROW'S ATMOSPHERIC RAILWAY AND CANAL PROPULSION COMPANY. Nov. 23, 1846. A writ of summons describing a public company, as " now or late carrying on business in King-William Street, in the city of London," was served upon a director at Barnet, in Middlesex:-Held, that both writ and service were irregular (a). The plaintiff had obtained letters-patent for alleged " improvements in the machinery for, or a new method of, propelling carriages on railways," &c. On the llth and 12th of June, 1845, he by deed granted to the defendants,-a company that had, on the 31st of [731] May preceding, obtained a certificate of complete registration under the sixth section of the 7 & 8 Viet. c. 110, intituled "An act for the registration, incorporation, and regulation of joint-stock companies,"-the sole licence and authority to use the letters-patent, for certain considerations therein mentioned. In the register the company was described as of "No. 6 King-William Street, in the city of London." An action having been commenced against the company to enforce the performance (a) Vide post, 375 (c). 3 C. B. 732. PILBEOW V. PILBROW'S ATMOSPHERIC RAILWAY OO. 293 of these contracts, the writ described them as " Pilbrow's Atmospheric Railway and Canal Propulsion Company, now or late carrying on business in King-William Street, in the city of London." For the purpose of serving the writ upon the secretary of the company, the plaintiff's attorney caused inquiry to be made at No. 6 King-William Street, and ascertained that the company had given up the office, and that neither the secretary nor any other officer then attended there. The plaintiff thereupon sent the writ of summons, and a copy, to the solicitors of the company, who, however, declined to give an undertaking to appear thereto. . The plaintiff then caused a copy of the writ to be served upon Francis John Lambert, one of the directors of the company, " who had acted in the concerns of the said company, and testified by his signature his assent to the common seal of the said company being affixed to the contracts or deeds of the llth and 12th of June;" Lambert being the only director, except two, then resident in England. The service was effected at Lambert's residence, New Lodge, near Barnet, in the county of Middlesex, which, it was sworn, was not within two hundred yards of the border of the city of London. Bovill, on a former day in this term,-upon affidavits disclosing the above facts, and also alleging that Lam-[732]-bert had not been served with any other process in the said action than the copy annexed to the affidavit as before described; that he never had resided, or had any place of business or abode, or carried on any business, at King William Street, in the city of London; that, at the time of the issuing of the said writ, the company had not, and from thence hitherto had not had, any office, place of business, clerk, secretary, treasurer, officer, director, agent, or servant at King-William Street aforesaid; that Lambert was not, nor ever had been, a head officer, clerk, or treasurer, or secretary of the said company, or an agent or officer employed by the said company; that the deponent (Lambert) verily believed that he was intentionally served with the said copy writ of summons, as a member of the said company, for the purpose of founding further proceedings upon such service against the said company; and that the said company had not been incorporated by any act of parliament passed since the passing of the companys clauses' consolidation act, 1845,-obtained a rule nisi to set aside the writ of summons and copy, and the service thereof, or some or one of them, with costs. The objections were-to the writ, that it contained no sufficient description of the residence of the company-and, to the service, that it had not been effected in the manner prescribed by the companies' clauses' consolidation act, 8 & 9 Viet. c. 16, s. 135 (a)1 that Lambert was not so connected with the company as to make a service upon him binding upon [733] the company (a)2; and that it was effected in a foreign county. Talfourd, Serjt., now shewed cause. This is not a writ within the terms of the 2 W. 4, c. 39, s. 1 (5): and every thing has been done that under the circumstances could be done to comply with the 135th section of the 8 & 9 Viet. c. 16. In Hill v. Harvey (2 C. M. & R. 307, 5 Tyrwh. 971, 1 Gale, 185, 4 Dowl. P. C. 163), it was held sufficient to describe a defendant, in a writ of capias, as " late of Devonshire-Terrace, New Road," no other residence or means of description being known : and in Welsh v. Langford (2 Dowl. P. C. 498), " Captain Langford, of the Hon. East-India Company's ship ' Kelly Castle,' and now most likely to be found at the East-India House, in the city of London," was held sufficient,-being a place at which the defendant might (a)1 Which enacts that " any summons or notice, or any writ or other proceeding, at law or .in equity, requiring to be served upon the company, may be served by the same being left at, or transmitted through the post directed to, the principal office of the company, or one of their principal offices, where there shall be more than one, or being given personally to the secretary, or, in case there be no secretary, thea by being given to any one director of the company." (of The seventh section of the 7 W. 4, & 1 Viet. c. 76, enacts that " every writ of summons issued against a corporation aggregate, may be served on the mayor or other head officer, or on the town-clerk, clerk, treasurer, or secretary of such corporation.' (b) Which prescribes the form of the writ of summons, and enacts, that, "in every such writ, and copy thereof, the place and county of the residence or supposed residence of the party defendant, or wherein the defendant shall be, or shall be supposed to be, shall be mentioned;" " and every such writ may be served, in the manner heretofore used, in the county therein mentioned, or within 200 yards of the border thereof, and not elsewhere." 294 PILBROW V. PILBBOW'S ATMOSPHEBIC BAIL WAY CO. 3C.B.731 reasonably be expected to be met with. With respect to the service on Lambert, the writ being against the company only by their corporate name, he is not in a situation to appear here to object to the writ or the service, without identifying himself with .the company. [Channell, Serjt., referred to Stevenson v. Tharne (13 M. & W. 149, 2 D. & L. 230), where it was held that a party so served, was at liberty to appear and urge an objection to the writ, without admitting himself to be the company, [734] or a member of the company.] That case differs from the present, inasmuch as here the parties sued are a corporation. [Maule, J. You seek to charge the company by means of a service that would ultimately found an application for leave to issue a scire facias against Lambert: if he cannot now object to the writ and service, when may he do so 1 ] That certainly seems to be an answer to the objection to his being now heard. [Maule, J. Supposing that difficulty could be got over, how can you justify a service of this writ in the county of Middlesex 1 The only use of naming a county at all in the writ of summons is, to point out where the plaintiff chooses to serve it.] King-William Street being the only place of which the company could be described, the writ could not issue in any other form. The first section of the 2 W. 4, c. 39, does not apply to the case of corporations, whose members may all reside out of the county or place where the business of the corporation is carried on. [Coltman, J. Why could you not have applied for a distringas 1 ] There would be great difficulty in making such an affidavit as would satisfy the court or a judge, that sufficient diligence had been used to serve the writ of summons. [Coltman, J. It does not occur to me that there could be much difficulty in making an affidavit that would satisfy the requisitions of the 2 W. 4, c. 39, s. 3.] It may well be doubted whether a distringas could issue against an incorporated company. The court would require the affidavit to shew attempts to serve the writ at the dwelling-house. [Maule, J. That is not required by the act of parliament, but is merely a condition imposed by the practice of the court. It may be that a public company that has not taken the proper steps to effect its dissolution (a), is not in a situation to say it [735] has no public officer.] In Evans v. The Dublin and Drogheda Railway Company (14 M. & W. 142, 2 D. & L. 865), the court of Exchequer held the service of a writ of summons on a director of the company in this country to be bad, their office being in Dublin : but, there, the act incorporating the company provided a particular mode of service, and the company was not directly amenable to the jurisdiction of the English courts. Channell, Serjt., and Bovill, in support of the rule. No particular mode of service being prescribed, the plaintiff was bound to sue out 'his writ in conformity with the directions of the 2 W. 4, c. 39, s. 1. If the existing place of business of the .company were unknown, it might be sufficient to describe them as "late of No. 6 King-William Street, in the city of London," Norman v. Winter (5 N. C. 279, 7 Scott, 251, 7 Dowl. P. C. 304). The company being so described in the register, they might be precluded from saying that they had no place of business there. The introduction of the words " or late " creates an ambiguity that makes the writ bad. The 2 W. 4, c. 39, s. 1 expressly requires " the place and county of the residence or supposed residence (c) of the party defendant" to be mentioned in the writ, and the service to be " in the county therein mentioned, or within two hundred yards of the border thereof, and not elsewhere." A service in one county, of a...
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