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unable to sue or contract or have any legal transactions with persons in this country. It was obvious that the agent would have no greater right than his principal who, being an alien enemy, could not sue?.'

Therefore, it is submitted that, quite apart from any criminality as amounting to 'trading with the enemy,' any payment to or dealing with the agent is nugatory and does not bind the principal.

As to the legality of such payments or dealings, the medium of an agent will not cure what is in fact a transaction with the enemy, and most of the clauses of the Trading with the Enemy Proclamations use some such words as 'to or for the benefit of' or 'on behalf of an enemy,' which are aimed at any such attempts. But the mere fact that a plaintiff will after the war come under a liability to remit a part of the sum sued for to an alien enemy whose security is thus improved, does not prevent him from recovering as between himself and the defendanta.

Further, it is clear that an agent in this country of an enemy cannot sue under a power of attorney or similar authority, for he can be in no better position than his principal.

We must therefore reject the lax American view expressed in Kershaw v. Kelsey4, that payments may be made to the agent here of a principal in enemy country, 'nor was it any objection that the agent might remit the money to the enemy for in that case the offence would be his.'

But a power of attorney for the sale of leaseholds, expressed to be irrevocable for twelve months, was not revoked by the principal subsequently crossing the line of war and becoming an “enemy resident' (he was always a German subject), and the British attorney could legally carry out an agreement of sale made after the principal acquired enemy character; and receive the purchase-money, holding it upon the instructions

1 Maxwell v. Grunhut (1914) 31 T. L. R. at p. 80—by the full Court of

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? Schmitz v. Van der Veen & Co. (1915) 31 T. L. R. 214.
3 Brandon v. Nesbitt (1794) 6 T. R. 23; Maxwell v. Grunhut, supra.

4 (1868) 100 Mass. 561; Pitt Cobbett's Leading Cases and Opinions on International Law (3rd ed.), Vol. II. p. 78.

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of the Public Trustee whom he had duly notified". The decision of the Court of Appeal appears to have been influenced by the facts that no further intercourse between the agent and his principal was necessary, and that the power of attorney related to land and so was on a special footing amounting for many purposes to an equitable conveyance, and notably by Lord Parker's remarks in Daimler Co. v. Continental Tyre and Rubber Co.2 (concurred in by Lord Mersey, Lord Kinnear, and Lord Sumner) upon the theme that 'the prohibition against doing anything for the benefit of an enemy contemplates his benefit during the war and not the possible benefit he may gain when peace comes.' The dissenting judgment of Scrutton L.J. in Tingley v. Müller and his comments upon Lord Parker's remarks at p. 177 should be noted. Lord Parker explained their application at a later date",

A difficult question arises in distinguishing between mere agency on behalf of an enemy resident' and a 'branch of an enemy business within the meaning of section 6 of the Trading with the Enemy Proclamation of 9th September, 19144. Dealings with an agent representing a principal who is an “enemy resident'are, it has been submitted, both nugatory and criminal. But dealings with a branch of an enemy concern in British, allied, or neutral territory, other than neutral territory in Europe, are permitted by the Proclamation of gth September, 1914. What then is a 'branch'? What are 'transactions by or with it'?

Can we use the test applied for the purpose of 0.9, r. 8 of the Rules of the Supreme Court in the service of process on foreign corporations ? They can be served in England only when they are conducting their business or a material part of it within the jurisdiction, in which event they are deemed to be ‘resident1 Section 274 of the Companies (Consolidation) Act, 1908, requires a foreign corporation having a place of business within the United Kingdom to register its address and certain other particulars with the Registrar of Joint Stock Companies, but the Court of Session has held that this registration did not in the circumstances of the case constitute the British place of business a ‘branch?,' although the local manager had power to enter into contracts and to sue and be sued. It seems, therefore, that we shall not find the test by considering whether the foreign person, firm, or corporation could be served within the jurisdiction; possibly our labours will be more fruitful if we investigate the relation existing between the 'branch' and the parent body—an element which though sometimes relevant in cases on service of process does not seem to be the determining factor.

1 (1917] 2 Ch. 144 (C. A.). See also Williams v. Paine (1897) 169 U. S. 55. 2 (1916] 2 A. C. at p. 347.

3 (1918] A. C. at p. 284. 4 See as to Insurance s. 5 of Proclamation of 8th October, 1914, and as to Banking s. I of that of 7th January, 1915.

5 And other than China, Siam, Persia, or Morocco (Proclamation of 25th June, 1915) or Liberia and Portuguese East Africa( Proclamation of Ioth November, 1915).

A judicial definition of branch'is too much to expect until a case arises which leaves no way of escape, but the ‘branch' cases were recently reviewed by Younger J. in the case of In re Continho Caro & Co.3, and in the course of some obiter dicta he has thrown light upon the question what is not a branch. Independence of enemy headquarters is in his opinion essential to constitute à 'branch'- freedom to accept or give orders without reference to headquarters 4. But no hard and fast line can be drawn between a branch and an agency. In the case before Younger J.he considered the London house to be neither, but nothing more than an office'...opened in this country ‘under a manager' and having practically no discretion at all.

The common sense of the matter surely is that expressions such as 'a branch,' 'an agency,' 'a London office' are not terms of art but business terms, and must receive a business

1 Annual Practice, O. 9, r. 8 (n.).
2 Orenstein v. Egyptian Phosphate Co. [1915] S. C. 55.

3 [1918] 2 Ch. 390. See also Wolf & Sons v. Carr, Parker & Co. (1915) 31 T. L. R. 407.

4 What has been called 'the brain and the heart'test of the Daimler Co.'s case about to be discussed may also be useful.

like interpretation. Little help can be obtained from existing legal conceptions and decisions, and each case calls for an application of common sense having regard to the particular mischief aimed at by the statute or other regulation under discussion?. Perhaps we can grade foreign establishments in this country in the following order of independence:

(i) 'Branches,' which are capable of entering into contracts in this country upon their own authority, though normally guided by general principles laid down by headquarters, either compulsorily or as a matter of common counsel and consent. So far as type is concerned, German Banks and Insurance Companies in London would seem to afford examples of 'branches, though, as we have seen, they are excluded as 'branches ' from the operation of section 6 of the Proclamation of gth September, 1914, and in the case of the Banks their operations during the war were regulated by licence of the Home Secretarya. But it does not appear to be essential to constitute a 'branch' that there should be a separate legal entity3.

(ii) 'Agencies, conducted by a person who enters into contracts on behalf of a foreign principal, and is in certain circumstances 4 personally liable.

(iii) A ‘London Office, which is merely the conduit-pipe whereby potential transactions are referred to the foreign headquarters, and which performs, to change the metaphor, functions not unlike those of a mere nuntius or animated letter.'

In case (i) the foreigner comes here and makes the contract, unless the 'branch' has a separate entity and itself contracts. In case (ii) the foreigner appoints some person here to contract for him. In case (iii) the foreigner stays where he is and runs a private post-office in this country.

1 See remarks by Younger J. [1916] 2 Ch. at p. 509.

Leader v. Direction der Disconto Gesellschaft (1915] 3 K. B. 154 (C. A.); Robinson v. Mannheim Insurance Co. [1915] 1 K. B. 155; Ingle v. Same, ibid. 227.

: See In re W. Hagelberg A.-G. (1916] 2 Ch. 503.

4 Harper & Sons v. Keller, Bryant & Co. (1915) 31 T. L. R. 284, where the defendants were agents for the Norddeutscher Lloyd Company, and were held to be contracting as agents and not personally.

COMPANIES, Under this heading it is proposed to deal firstly with the effect of the outbreak of war upon companies registered under the Companies Act and other corporations, which by place of incorporation, place of carrying on business, national status of members, or otherwise, may become affected with enemy character; and secondly with the effect upon the shareholders' contract of membership. Having regard to the comparatively recent development of joint-stock enterprise on a large scale, it is not surprising to find that on both these points the inquirer at the outbreak of war found remarkably little authority to guide him. As Lord Parker of Waddington said":

Joint-stock enterprise and English legislation and decisions about it have developed mainly since this country was last engaged in a great European war, and have taken little, if any, account of warlike conditions. (a) The position of the corporation itself.

There are now some forty pages of judgments by members of the House of Lords, and guidance laid down in emphatic terms. Even the strongest champion of Lord Parker's judgment in the Daimler Co.'s case? will admit that the doctrine is new (to seven judges in the courts below with one notable dissentient, now Lord Wrenbury, as also to Lord Shaw and Lord Parmoor, it was heresy) and therefore without disrespect some few words may be said upon the small amount of contrary authority which had accumulated prior to this decision.

It was commonly accepted that prima facie a corporation takes its character from the country in which, and under whose laws, it is incorporated, without regard to the national status of its individual members; the corporation is a distinct juristic person and derives its character from the country which conferred personality upon it'.

1 [1916] 2 A. C. at p. 344. 2 Daimler Co. Limited v. Continental Tyre and Rubber Co. (Great Britain) Limited (1916] 2 A. C. 307.

8 Society for Propagation of Gospel v. Wheeler (1814) 2 Gallison (O. S.) 105; Pitt Cobbett's Leading Cases and Opinions on International Law (3rd ed.), Vol. II. passim.

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