up the concern, and all parties concurred in the expediency of selling the real property, but some opposed a sale by the factor, the Court held that as the real property must be viewed as part of the company funds, the factor was entitled to make up titles to and sell it; and authority was granted accordingly (a). When a judicial factor on the estate of a dissolved company brings an action for a debt due the company, and is met by the defence of set-off, he is entitled, on obtaining authority from the surviving partner, to plead recompensation against the counter claims of the defenders, in respect of a sum due by them to the surviving partner individually, though incurred after dissolution of the partnership (b).

of partner.

It is not unusual in England, when a receiver is appointed, to Appointment give the appointment to a partner actually carrying on the business, provided he is not chargeable with misconduct. He, however, receives no salary (c).

companies.

In the case of joint-stock companies managed by directors, it is Public more difficult to obtain the appointment of a judicial factor than in the case of private partnerships. If the application is made at the instance of a minority, it is always very doubtful whether they have good cause of complaint, seeing the majority are satisfied with the management provided by the company's constitution; and if at the instance of a majority, such an extraordinary exercise of the equitable powers of the Court seems unnecessary, since the majority have generally the power of remedying the evils complained of by changing the management, and any immediate improprieties may be checked by interdict. When the company is incorporated, the appointment of a judicial factor is liable to this objection, that it amounts to a withdrawal of the management from the governing body to which the Legislature or the Crown had entrusted it (d). The case is different where the company has been dissolved, and the application is made for the purposes of winding up (e). When an application of this kind is made, all the partners or shareholders must be called (ƒ).

(a) Fullartonv.Dixon, 1834, 12 S.750. (b) Thomson v. Stephenson, 1855, 17 D. 739. See also Rae v. Candlemakers of Edinburgh, 1858, 20 D. 461. (c) Wilson v. Greenwood, 1 Swanst. 471. See Lindley, p. 856.

(d) Maxton v. Muir, 1845, 7 D. 1006.

(e) Opinions of judges in same case; and Southern Bank of Scotland, 1849, 11 D. 1494.

(f) Last cases.

Statutory provisions.

By the Companies Clauses Act, 8 and 9 Vict. c. 17, ss. 56 and 57, and 20 and 21 Vict. c. 56, s. 3, the courts are specially empowered to appoint judicial factors or receivers, to collect the tolls or other sums liable for the principal or interest of certain mortgages or bonds granted by companies falling under the provisions of the statute. Similar provisions also occur in some previous private acts. It has been decided, that these special enactments do not take away the original powers of the Court of Session or the Court of Chancery to appoint such officials (a). The mortgagee, it appears, may elect between the statutory and the ordinary appointment (b).

(a) Glasgow and Garnkirk Ra. Co., 1850, 12 D. 944 and 1014; Maxton v. Muir, 1815, 7 D. 1006; Dremry v. Barnes, 3 Russ. 94; Knapp v. Williams, 4 Ves. 429; Dumville v. Ashbrooke, 3 Russ. 98.

(b) Fripp v. Chard Ra. Co., 22 Law

Jour. Ch. 1084. See, as to these appointments, Baird v. Caled. Ra. Co., 1850, 13 D. 36 and 795; Primrose v. Caled. Ra. Co., 1851, 13 D. 1214; Wishaw Ra. Co. v. Caled. Ra. Co., 1851, 13 D. 464; Glasg, and Barrhead Ra.Co. v. Caled. Ra. Co., 1850, 12 D. 1014.

CHAPTER IX.

CRIMINAL AND QUASI CRIMINAL PROCEDURE.

observations.

By the law of Scotland, though criminal prosecutions are generally General raised at the instance of the Lord Advocate as public prosecutor, it is also competent to the private party who has sustained the wrong to prosecute criminally ad vindictam publicam; but inasmuch as such a power is very liable to abuse, the law has made certain provisions which have generally been found sufficient to prevent its being exercised in a reckless or malicious manner (a). One of the most important of these is, that the unjust or calumnious prosecutor lays himself open to an action of damages at the instance of the accused; and by certain statutes, the Court of Justiciary is empowered, on the accused being acquitted, to subject the prosecutor in due reparation, which may be recovered by summary process. It seems even to be competent to raise a counter libel for calumny, and remit it to the same assize by which the accused had been tried (b).

Criminal proceedings not

competent to companies.

Now, it is obvious that the efficiency of such checks on reckless or malicious prosecution depends entirely on the accused being generally made aware of who his individual accuser or accusers are; and consequently, before a private prosecution can proceed, it is required not only that the name of the individual or individuals prosecuting appear in the instance, but that they appear personally at the bar. For this reason, therefore, if for no other, such prosecutions cannot be raised at the instance of firms or companies prosecuting in the descriptive or social name. It may be said, indeed, that this reason would fail when the prosecution proceeds in the social name, (a) Hume's Criminal Law ii. p. 119. (b) Ibid. pp. 127-8.

Distinction between companies and corporations.

which includes that of individuals; but it must be remembered that the social name often includes those of persons who are no longer partners. The difficulty would perhaps be got over if the prosecution were to be raised in the names of all the partners or members of the company, and if they all appeared at the bar (a). In the case of a corporation aggregate, it was held that a private prosecution might proceed in the corporate name, coupled with that of a factor or attorney specially appointed for the purpose, who appeared at the bar as representing the corporation. Yet in that case the factor not only produced his general commission of factory, but an extract from the company books, under the hand of the secretary, of a special order to him to carry on the process, and a formal mandate to prosecute under the corporate seal (b).

An opinion has been hazarded, to the effect that the same kind of procedure would be competent at the instance of an unincorporated association (c); but here the characteristic distinctions between corporations and common law companies appear to have been overlooked,-a distinction which greatly affects even civil procedure. 1st, The will of a corporation is ascertained in accordance with the forms appointed for that purpose by public authority, so that there is little danger of its name being used by unauthorized persons; whereas the same securities do not exist that the name of a mere firm or unincorporated association may not be employed by a minority of the partners, or even by strangers, for the purpose of a groundless or malicious prosecution. 2d, A corporation is a continuous entity, possessing corporate property, and not dissolvable at the will of its members, so that in the event of his being wronged, the accused can be at no loss against whom and in what manner to obtain redress; whereas the quasi person of a common law company or firm may be dissolved at any time, leaving the accused to find his remedy as best he may against such as he can prove to have been its former members (d). It would therefore seem, that while corporations may, by observing certain formalities, prosecute criminally in the corporate name, this is incompetent (a) Renfrewshire Banking Co. v. M'Kellar, 1816, Hume's Crim. Law ii. 119; Aitken v. Rennie, 1810, 16 F. C. 78.

(b) York Buildings Co. v. Mathie, 1727, Hume's Crim. Law ii. 268. (c) Hume's Criminal Law ii. 268. (d) See Arbuckle v. Taylor, 1815, 3 Dow 160.

to unincorporated associations, unless all the members appear individually in the instance and attend at the trial.

It has sometimes been given as a reason why unincorporated associations could not prosecute criminally, that they are not susceptible of the sense of injury (a). As to this, it may be said that a desire to revenge wrongs, real or supposed, is not a motive for instituting a criminal prosecution, which ought to be recognised by the law in civilised times; and it is to be hoped that the tribunals of this country would discountenance any other motives than those of reforming the criminal or securing the safety of the public. But apart from such considerations, it is very evident that in denying the right of criminal prosecution to unincorporated associations, the law has recognised no such principle as that suggested, seeing the right in question is competent to corporations, whose sense of injury cannot be supposed to have been implanted or preternaturally quickened by the intervention of a charter or special act.

No criminal or quasi criminal proceedings can be taken against firms, companies, or other associations of individuals, whether corporate or unincorporate; the individuals only by whom the wrong is alleged to have been done can be so prosecuted. The reason of this is, that artificial persons cannot be conceived of as possessing moral attributes; and that to punish as criminals the individual members of an association for its corporate acts, unless where they were individually tried and convicted, would in many cases involve persons in the consequence of crimes of which they were morally innocent (b).

Criminal pro

cedure against associations is

incompetent.

STATUTORY PENALTIES.

When companies are formed by special act for carrying on Modes of undertakings of a public nature, such as railways, canals, and the enforcing. like, certain police regulations are often made by the Legislature for the protection of their interests and those of the public; and the company are themselves frequently empowered to make byelaws for the same purpose. When this is the case, summary and convenient modes of procedure are provided by the Legislature for (a) Hume's Criminal Law ii. (b) Miles v. Finlay and Co., 1830, 119. 9 S. 18.