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 scction 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 dis

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. 336.1

2 [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.

PARKE, B.1 We are of opinion that the judgment in the present form is erroneous. Upon referring to the precedents, it appears that the plaintiff in detinue has a right to recover the goods in specie, and, in case of non-delivery, the value, and the option of giving up the goods or paying the value is in the defendant, who, by refusing to deliver the former, renders himself liable to pay the latter. It was so laid down by Frowike, C. J., Keilw. Rep. 64 b. He says, "that the judgment is, that the plaintiff shall recover the goods or the value; then shall issue a writ to the sheriff to distrain the defendant to deliver the goods, and if he will not, then the value as it is taxed by the inquisition. And so

1 A part only of the opinion is given.

it is in the election of the defendant to deliver to the plaintiff the goods or the value." And the same law is laid down in Yelv. 71; and in Peters v. Heyward, Cro. Jac. 682, it was held that the judgment must not give the sheriff an option to take one or the other, but the plaintiff must have judgment to recover the goods only, and, if they could not be had, the value. There appear to be two modes in the old books by which the value so to be recovered is to be ascertained; one, by which the value is found by the jury who try the issue, in giving the verdict ; Rast. Ent. 218 b, Detinew, pl. 9, Peters v. Heyward, Cro. Jac. 682; and, if there were no issue to be tried, the jury who assess the damages would find the value: the other, according to which the sheriff is directed to ascertain the value [by writ of inquiry, according to the authorities cited], if the defendant does not deliver up the goods: Rast. Ent. Detinew, 218 a, pl. 4, 218 b, pl. 5, 219 b, pl. 13; and, on the sheriff's return, judgment absolute would be given for the value; Paler v. Hardyman, Yelv. 71.

In the present case neither of these forms is adopted. The judgment does not ascertain the value, nor give any means of ascertaining it. The objection is the same as was held valid upon error in the last mentioned case.

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, -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