Select Cases and Other Authorities on the Law of Property

posing of each from time to time; and the purpose of all this is the obtaining a clear surplus profit from the use and disposal of this capital for the individual contributors.

It is this surplus profit alone which is divisible among the individual corporators. The land or the chattels are only the instruments — and those varying and temporary instruments — whereby the joint stock of money is made to produce profit. Suppose the subscription had not been by the individual corporators, but that strangers, having collected the money, had put it into the management of a corporate body having particular privileges, and had, after giving them power to vest the money at their pleasure, stipulated to receive these profits: could it be contended that the nature of the property of the subscribers depended on the mode of management by the independent body? And yet that is, in truth, this case; for the individual members of a corporation are quite as distinct from the metaphysical body called "the corporation," as any others of his Majesty's subjects are.

This case varies most materially from those which were cited in the argument. In the New River case, the individual corporators have the property; the corporation have only the management of it. Lord Hardwicke, in the case in Atkyns,' expressly puts it on that ground. "They have the legal right," he says; they may bring an ejectment for so much land covered with water; and the only difference between the shareholders of the king's half and the others is that the corporation of management have as to these shares perhaps the legal estate in them, the equitable estate being in the individual proprietors." In that case, too, the property given to the corporation was real property, which they are to manage for the good of all. They have no powers of converting it into any other sort of property, but must keep it and make a profit from it as it is; viz., as real property.

The same observations apply to Buckeridge v. Ingram, the Avon Navigation, with this addition, that there the undertakers do not appear to have been a corporation at all. And in both the shares are transferred to the shareholders and their heirs. But here the case is wholly different, the property intrusted is money; the corporation may do what they like with it, and may obtain their profit in any way they please from the employment of their capital stock. If they thought that they could with greater profit supply water by conveying it in carts or the like, they would have a perfect right so to do. It would be strange that the nature of these shares should continually fluctuate, and be sometimes real estate, and sometimes personal, according as the corporation in the course of their management should choose to hold real or personal property. Suppose a man made his will, attested by two persons, and at a time when the corporation held only personal estate. It is good. He becomes lunatic or is incapable from age, and then real property is bought by the corporation. Is his will to be set aside? And yet he cannot make another.

1 [Townsend v. Ash, 3 Atk. 336.]

[2 Ves. Jr. 652.]

Then, in what way has this property always been treated? If we look to the wording of the charter, the language is much more suitable to personal than to real estate. Indeed, on the latter supposition it is very inaccurate. Again, the form of transfer appointed by the legislature (for that which is done under the provisions of the charter is, in fact, done by the legislature, and is, indeed, subsequently recognized by it) is applicable to personal estate only. These shares are not transferred to A. B. and his heirs, but A. B., his executors, administrators, and assigns; and so they have always been. This form, indeed, may be considered as almost a contemporary exposition of the law on this point.

Lastly, in Weekley v. Weekley1 this point came expressly under the consideration of Sir Thomas Sewell, Master of the Rolls, and he decided that these shares were personal property.

Upon the whole, therefore, we think that the principles of law, the usage of the company, and the distinct authority of one decided case are sufficient to warrant us in coming to the conclusion that these shares are personal property.

The result is, that the bill must be dismissed, with costs.

Decree accordingly.

Mr. Simpkinson, Mr. Creswell, and Mr. Toller, for the plaintiff. The Attorney-General (Sir John Campbell), Mr. Boteler, and Mr. Prescott White, for the Governor and Company of the Chelsea Waterworks.

Mr. G. Richards and Mr. Stevens for the defendant Brent.

1 [2 Y. & C. Ex. 281, note.]

NOTE.

- So Russell v. Temple, 3 Dane, Ab. 108. In Connecticut, shares in turnpike corporations, and in Kentucky, shares in railroad corporations, were once held to be real estate; but in both States the law has now been changed by statute.

BOOK II.

NATURE AND ACQUISITION OF RIGHTS IN PERSONAL
PROPERTY.

CHAPTER I.

INTRODUCTORY.

SUITS FOR THE RECOVERY OF PERSONAL PROPERTY.

NOTE. The student cannot too soon observe the inseparable connection between substantive rights and the forms of remedies. In most suits which involve rights to personal property, only damages can be recovered. It seems desirable here to see when possession of the property itself may be obtained.

must concent

[Reported Cro. Jac. 682.]

yourself ERROR of a judgment in the Common Pleas in detinue of a bond.

Upon non detinet pleaded, it was found for the plaintiff, and the dama-
damages, ges assessed to seven pounds and costs sixpence; and if the bond can-
not be restored, then they assessed for damages, besides the seven
aft elect
pounds, twenty pounds more; and it was thereupon adjudged that he
otherwise
should recover the said seven pounds and sixpence for the costs, and
For the
the said bond or twenty pounds: et præceptum fuit vicecomiti distrin-
judgement gere for the said bond or twenty pounds.

is condition And thereupon the error was assigned, for the judgment ought to be
ab at
conditional; viz., the said bond, or if he cannot have the said bond, then
the twenty pounds; and accordingly the distringas ought to have been
to demand the bond, and if it cannot be delivered, then the twenty

election

of dft.

Crovision for

action

deliving in

recessary to detrime

pounds; but these words," and if it cannot be delivered," were omitted, wherefore it was moved to be error.

And although Waller, the prothonotary of the Common Pleas, certified that there were divers precedents there in this manner, and it was said that in the Book of Entries, Co. Ent. 170, judgment is entered in this manner, and alleged that the judgment being that he shall recover the bond or twenty pounds tantamount, and is to be intended conditional that he shall have the bond, and if he cannot have it, then the twenty pounds; yet upon consideration of many other precedents, and the books which mention that the judgment is and ought to be conditional in itself, and not by intendment, the court held that the judgment was erroneous; for by that judgment and awarding of a distringas the sheriff might distrain for the one or the other at his choice, which ought not to be; but he ought to distrain for the thing itself, and if he cannot have it, then for the twenty pounds; and although the writ of distringas was well made, and in that manner as it was shown to the court, yet forasmuch as the judgment is otherwise, the awarding upon the roll, which is the warrant of the writ, was not good: wherefore rule was given that the judgment should be reversed.1

The cause came on to be tried before Crowder, J., at the last Spring Assizes for Devon. The following account of the facts which then appeared in evidence is taken from the judgment of this court.

"One Facey was indebted to the plaintiff. He brought him £15 towards payment of the debt, but requested and obtained permission to lay the money out in the purchase of a horse and cart, which were to be the property of the plaintiff, but of which Facey was to have the possession and the use, subject to such occasional use as plaintiff might require to have of them, and to their being given up to plaintiff when he should demand them. Accordingly Facey made the purchase. The possession and the use were substantially with him; he fed, stabled, and took care of the horse; there was some evidence that his name was on the front of the cart; certainly plaintiff's was on the side,

1 In an action of detinue on a judgment that the plaintiff shall recover the goods or the value, there shall issue to the sheriff a distringas to the defendant ad deliberanda bona, and if he will not, the plaintiff shall have the value as it is taxed by the inquest; and so it is in the election of the defendant to deliver to the plaintiff the goods themselves, or the value, &c. Per Frowyk, C. J., in Anon. (Cam. Scacc.), Keil. 61b, 64 b (1505).

Replevin does not bix unless there is a taking out of the possession of the

Must be trespass in Enf. for Reflevin!