so remarkable a divergence of judicial opinion, and it is fair to remark (a) that the important part of Lord Parker's judgment summarized above was obiter, as it sufficed for the purposes of the decision to hold, as their lordships unanimously did, that the secretary had no authority to institute the action and there was no way in which he could acquire authority; and (b) that the objects which their lordships had in view in enunciating the broad principles underlying the national status and character of corporations might have been more suitably achieved by the intervention of the legislature, as indeed had already happened by means of a series of Trading with the Enemy Acts by the time the case had reached the House of Lords. It is true that the circumstances of the case at the date of the issue of the writ must govern the actual decision in that particular case, but the fact that Parliament had armed the Board of Trade in November 1914 with power to appoint a controller of a company 'in any case in which the Board think it is expedient in the public interest,' and in January 1916 with power to wind up enemy-controlled businesses might have been some guarantee to their lordships against the evils which one cannot help feeling the judgments of the majority were designed to avoid.

The application of the principles enunciated in the Daimler Co.'s case are now being worked out. Our remarks upon In re Hilckes, ex parte Muhesa Rubber Plantations, Ltd.1 need not be repeated. Other instances are to be found in a case on appeal from the Court of Admiralty2, and in two cases in Prize3.

In another case it was argued that the principles of the Daimler's Co.'s case operated to convert a company registered in England into a neutral company on the ground that most of the shares were held in the United States of America (apparently the writ was issued when that country was neutral) and that the directors in England acted on instructions from

1 [1917] I K. B. 48 (C. A.); discussed on p. 52 of this book.

2 The Polzeath [1916] P. 241.

The St Tudno [1916] P. 291; The Hamborn [1919] W. N. 246.

4 (1918) Elders & Fyffes Limited v. Hamburg-Amerikanische Packetfahrt A.-G. 34 T. L. R. 275 (C. A.).

America. The object of this argument, which was advanced by an enemy defendant, was to make out the English company to be American in character and so to avoid the abrogation of certain long term contracts which must have happened if it took its character from its place of registration.

We have so far considered the character of corporations incorporated within the British Empire, and have seen that certain circumstances will clothe with enemy character corporations which prima facie are British in character. Does the reverse hold good? What are the circumstances in which a company incorporated in enemy territory will be regarded by an English court as free from enemy character?

As a matter of principle, just as an enemy subject can acquire a commercial domicile in this country, so also an enemy corporation can acquire such domicile by carrying on business in this country and thus be divested of enemy character so far as concerns those operations. In the case of Ingle v. Mannheim Insurance Co.1 Bailhache J. held that the defendant corporation's branch office in London gave it commercial domicile here, and but for the provisions of section 5 of the Proclamation of 8th October, 1914, which only applies to insurance companies, it would not have been an alien enemy. It will be noticed that the defendant corporation had complied with the provisions of section 274 of the Companies (Consolidation) Act, 1908, by registering its London address. Bailhache J. says2: 'In the case of individuals and at common law the question whether a man is to be treated as an alien enemy for the purpose of his contracts, rights of suit, and the like, does not depend upon his nationality or even upon his true domicile, but upon whether he carries on business in this country or not. If he does, it is not illegal even during war to have business dealings with him in this country in respect of the business which he carries on here. He is not in respect of that business divided by the war line, but has what is sometimes called a commercial domicile here. The same thing is true of companies whose head office is in Germany but which have a branch office here in respect of business transactions with such branch office.'

1 [1915] I K. B. 227.

2 At p. 230.

It thus appears that at common law and apart from emergency legislation a corporation may be in part enemy and in part not according to the locality of its various branches1, but it seems necessary to add in view of the Daimler Co.'s case that a branch outside enemy territory must, to avoid enemy character, be independent of enemy headquarters.

Turning to the emergency legislation, we find that the Trading with the Enemy Acts and Proclamations contain several relevant provisions, (1) firstly in determining enemy character. The Proclamation of 9th September, 1914, s. 3, defines 'enemy' as (inter alia) 'any person or body of persons of whatever nationality resident or carrying on business in the enemy country....' Presumably this includes a corporation. By the Interpretation Act, 1889, the expression 'person' in an English statute passed after 1st January, 1890, includes 'any body of persons corporate or incorporate,' and in penal 'enactments' 'person' includes a body corporate. The same clause of the Proclamation refers to 'incorporated bodies' and states that enemy character attaches only to those incorporated in an enemy country.' But a later Proclamation dated 14th September, 1915, and made for the purpose of removing doubts, declares that the expression 'enemy' includes any incorporated company or body of persons (whether incorporated) carrying on business in an enemy country or in any territory for the time being in hostile occupation.' The combined effect of these provisions appears to be that the Berlin branch of an English company is pro hac vice an alien enemy, and by s. 6 of the Proclamation of 9th September, 1914, the London, Paris, or New York branch of a German person, firm or corporation is not enemy2. (We considered the meaning of 'branch' in connexion with Agency 3.)

1 See however Central India Mining Co. Limited v. Société Coloniale Anversoise (1919) 35 T. L. R. at p. 588.

2 Except in the case of Insurance and Banking businesses-see Proclamations of 8th October, 1914 (Insurance) and 7th January, 1915 (Banking). Nevertheless, under the Amendment Act of 1916 the London branch of a German person, firm, or company could be compulsorily wound up. 3 pp. 114-116.

(2) Another important sphere of operation of the Trading with the Enemy Acts is in regard to state supervision. Section 2 (2) of the Trading with the Enemy Act, 1914, confers upon the Board of Trade special powers of inspection of books and documents of a firm of which one partner is an enemy as therein defined, or of a company in which one-third or more of the issued share capital, or one-third or more of the directorate, before or since the commencement of the war, was held by, or consisted of, persons who were subjects of, or resident or carrying on business in an enemy country, and s. 3 enables the Board of Trade to apply to the Court for the appointment of a controller of any firm or company or (by s. 11 of the amending Act of 1914) person (British, neutral or enemy) if one of two conditions is present:

(1) an offence under the Act has been or is likely to be committed, or

(2) the effective continuance of the business is prejudiced by the war and such continuance is to the public interest; and further

(3) by s. 11 of the amending Act of 1914

'in any case in which the Board think it is expedient in the public 'interest...owing to circumstances or considerations arising out of the present war.'

As the war progressed, public opinion stiffened on the subject of businesses in this country having enemy elements or associations, and we find the Trading with the Enemy Act, 1916, directing the Board of Trade, in the case of any business carried on in the United Kingdom by any person, firm, or company which is by reason of the enemy nationality or association of that person, firm, or company, or the members of the firm or company, carried on 'wholly or mainly for the benefit or under the control of enemy subjects,' to make, unless for some special reason it appears inexpedient, an order prohibiting the carrying on of the business or requiring the business to be wound up. At the same time or subsequently the Board may appoint a controller 'to control and supervise the carrying out of the order and, if the case requires, to conduct the

winding up of the business.' The administration of this legislation is outside the scope of our present consideration, but it should be noted that expressions such as 'winding up the business' and 'assets of the business' are not necessarily coincident with 'winding up the company' and 'assets of the company1,' and that a business with which under the Act of 1916 the Board of Trade may deal

'is treated by the Act as an entity separate and distinct from any other property whether in the United Kingdom or abroad, and from any other business not in the United Kingdom, of the person, firm or company, owning or controlling it.'

A controller of a firm of enemy nationality carrying on business in Germany and in the United Kingdom, appointed under the Amendment Act of 1916, may be invested by the Board of Trade with power to sue for debts, and his action cannot be defeated by a plea of alien enemy2. But his appointment does not revive contracts with the alien enemy which were abrogated by the outbreak of war3.

The Amendment Act of 1914 contains provisions (s. 9) preventing the registration during the recent war of new companies formed to acquire the business of persons, firms, and companies having enemy connexions or constituents within the scope of s. 2 (2) of the principal Act, without the licence of the Board of Trade, and section 10 of the Amendment Act of 1916 empowers the Registrar of Joint Stock Companies to refuse to register any company of which a proposed director or a subscriber to the memorandum is an enemy subject.

Finally, it should be noted that s. 13 of the Amendment Act of 1918 contains for the purposes of that Act, notably the restriction on carrying on the business of banking within the United Kingdom 'during the period of five years immediately after the termination of the present war and thereafter until Parliament otherwise determine,' the following elaborate definition of 'enemy-controlled corporation':

1 In re Th. Goldschmidt, Limited [1917] 2 Ch. 194, 197.

2 Continho Caro & Co. v. Vermont & Co. [1917] 2 K. B. 587.

3 In re Continho Caro & Co. [1918] 2 Ch. 384.