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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 ejectinent 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 he 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. [Townsend v. Ash, 3 Atk. 336.1
[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 hy 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. Weekley' 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.
[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.
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.
DETINUE AND REPLEVIN.
PETERS V. HEYWARD.
COMMON BENCH. 1623.
(Reported Cro. Jac. 682.) 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 damages assessed to seven pounds and costs sixpence; and if the bond cannot be restored, then they assessed for damages, besides the seven pounds, twenty pounds more; and it was thereupon adjudged that he should recover the said seven pounds and sixpence for the costs, and the said bond or twenty pounds : et praeceptum fuit vicecomiti distringere for the said bond or twenty pounds.
And thereupon the error was assigned, for the judgment ought to be 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
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.
MENNIE v. BLAKE.
QUEEN'S BENCH. 1856.
(Reported 6 E. & B. 842.) REPLEVIN. Plea: Non cepit. Issue thereon.
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 them. selves, or the value, &c. Per Frowyk, C. J., in Anon. (Cam. Scacc.), Keil. 61b, 64 b (1505).
under what circumstance placed there, the evidence was contradictory, the plaintiff alleging it to have been placed in the ordinary way as an evidence of property, the defendant insinuating that it was so placed in order to protect it from Facey's other creditors. It is not, however, material, because on the one hand the plaintiff's property we take to be indisputable, and on the other we do not think there is evidence enough to charge the defendant with fraud or collusion in the circumstances under which he obtained possession, and which we now proceed to state.
“ Facey determined to emigrate ; and the defendant knew of his intention, but the plaintiff did not. The horse and cart were used in transporting Facey's effects to the pier at which he was to embark ; and the defendant, to whom he owed money for fodder supplied to the horse, went with him to procure payment if he could. At parting, Facey delivered the horse and cart to him, telling him to take them for the debt, but adding that he owed the plaintiff money also, and that if he would discharge the debt due to the defendant, which was much less than their value, he was to give them up to him. In this mavner the defendant acquired his possession. The plaintiff for some time remained in ignorance of what had passed, and afterwards, coming to the knowledge of it, demanded them; but the defendant refused to deliver them unless his debt were paid : whereupon the plaintiff proceeded to replevy the goods, and so brought the present action.”
Upon these facts the learned judge directed a verdict for the plaintiff, with leave to move to enter a verdict for the defendant, or a nonsuit if under such circumstances replevin did not lie.
Montague Smith, in the ensuing term, obtained a rule nisi accordingly.
Collier and Karslake, in last Hilary Term, showed cause.
COLERIDGE, J., now delivered judgment. This was a rule to enter a ponsuit or verdict for the plaintiff on a plea of Non cepit to a declaration in replevin ; and the facts were in substance these. His Lordship then stated the facts, and proceeded as follows:
Upon these facts the question raised is, Whether there was any taking of the horse and cart from the plaintiff by the defendant? And we are of opinion, looking to the nature and purpose of the action of replevin, that there was no taking in the sense in which that word must be understood in this issue. The whole proceeding of replevin, at common law, is distinguished from that in trespass in this, among other things : that, while the latter is intended to procure a compensation in damages for goods wrongfully taken out of the actual or constructive possession of the plaintiff, the object of the former is to procure the restitution of the goods themselves; and this it effects by a preliminary ex parte interference by the officer of the law with the possession. This being done, the action of replevin, apart from the replevin itself, is again distinguished from trespass by this, that, at the time of declar