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and also estates for life or lives, and for years, and goods and chattels of what nature or value soever, for the better carrying on and effecting the purposes of the company, not exceeding the value of the joint stock of the corporation thereinafter mentioned and limited, and to be taken and computed as part thereof.
The twenty-third section empowered the corporation by subscription to raise a joint stock, not exceeding £40,000, and to manage the same from time to time, and to receive the benefit and advantage of the same to the use of them the said Governor and Company and their successors, according to such shares and proportions as they or any of them have or shall have therein. And then it provided that every person subscribing and contributing any sum or sums of money should, by virtue thereof, become members of the said corporation, and should be entitled to a share or shares in such joint stock (previously fixed at £20 each) equal to the sum or sums of money so by him actually contributed and paid in, and no greater; and should be enabled to sell, assign, and transfer the same or any part thereof (not being less than one whole share, as by a subsequent clause was provided), by transfers in the company's books, in such manner as should be by a general court directed, or by his last will and testament; and the person to whom such assignment or transfer, or disposition by last will and testament, should be made, should by virtue thereof become member of the said corporation.
What, then, is the intention of the crown and legislature to be collected from all these particulars as to the nature of the interest which each shareholder is to have ? That is, in truth, the whole question in this cause.
Now, in the first place, we have a corporation to whose management the joint stock of money subscribed by its individual corporators is intrusted. They have power of vesting it at their pleasure in real estate or in personal estate, limited only as to amount, and of altering from time to time the species of property which they may choose to hold.; and in order to give them greater facilities and advantages, certain powers are intrusted to the undertakers by the legislature, and that even before they were constituted a body corporate, of laying down pipes, and thereby occupying land for the purposes of their undertaking. These powers
render the use of joint stock by the body corporate more profitable, but they form no part of the joint stock itself; and one decided test of this is, that they belong inalienably to the corporation, whereas all the joint stock is capable expressly of being sold, exchanged, varied, or disposed of at the pleasure of the corporate body. It is of the greatest importance to look carefully at the nature of the property originally intrusted, and that of the body to whose management it is intrusted, the powers that body has over it, and the purposes for which these powers are given. The property is money,
the subscriptions of individual corporators. In order to make that profitable, it is intrusted to a corporation who have an unlimited power of converting part of it into land, part into goods, and of changing and disposing 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 corporațion," 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. 336.1
[2 Ves. Jr. 652.]
And if such a writ is available against a stranger on account of a sale, much more is it available against the lord himself who has demised and ejected without cause, than against a stranger who had some kind of reason, if because of the sale made to him the seller (qu. purchaser] has ejected the lessee, or otherwise if some one other than he who demised, has ejected ; and then in this fashion : " Which C. of N. demised to him for a term which has not yet passed, within which term the said A or the said C has wrongfully ejected the said B from the said land (or his farm [firma]) as he says, and unless he does so, and the said B gives you security, then summon,” &c. ... No more can any one eject a lessee from his farm, than any tenant from his freehold. And if the lessor is the ejector, he shall restore the seisin with damages, because such a restitution [qu. ejectment] does not differ much from a disseisin. But if some one other than the lessor is the ejector, if he has done it with the authority and will of the lessor, both shall be held by the judg. ment, one on account of the act, and the other on account of having given the authority. But if it was without the will [of the lessor], then the ejector is held both to the lord of the property and to the lessee, to the lessee by the writ aforesaid, and to the lord of the property by an assise of novel disseisin, that the one may have again his term with damages, and the other his freehold without damages.?
LIT. $ 740. But where such lease or grant is made to a man and to his heires for terme of yeares, in this case the heire of the lessee or the grantee shall not after the death of the lessee or the grantee have that which is so let or granted, because it is a chattel reall, and chattels realls by the common law shall come to the executors of the grantee, or of the lessee, and not to the heire.
Co. Lit. 388 a. Here is a generall rule, that chattels reals as well as chattels personals shall goe to the executors or administrators of the lessee, and not to his heires. For as estates of inheritance or freehold descendible shall go to the heire, so chattels, as wel reall as personall, shall goe to the executors or adıninistrators.
2 Bl. Com. 21. Incorporeal hereditaments are principally of ten sorts; advowsons, tithes, commons, ways, offices, dignities, franchises, corodies or pensions, annuities, and rents.
AUBIN V. DALY.
[Reported 4 B. d Ald. 59.] By letters patent under the great seal of England, dated July 19, 24 Car. II., as well in consideration of the surrender by the Earl of
| See Digby, Hist. Real Prop. c. 3, sect. 2, § 17 (in 1st ed. § 16).
I letters patent, as well as in consideration of th' vurzeuder:
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