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dered to make such entry accordingly; and that the company of proprietors had reuntil such duplicate of such deed should be quired further security, and that Dilworth delivered to the said committee, or their had proposed to transfer to them the 300 clerk, and filed and entered as above di- shares, and had, by an instrument duly exerected, such purchaser or purchasers should cuted pursuant to the act of parliament, have no part or share of the profits of the transferred to the company the 300 shares said navigation, nor any interest for his said -it was witnessed, that the company should share paid unto him, her, or them, or any stand possessed of the shares, upon trust to vote as a proprietor or proprietors.

pay to Dilworth or his assigns, the diviBy other clauses, the company were au- dends, so long as Dilworth, Arthington, thorized to appoint a treasurer or treasu

& Birkett should well and truly acrers; and they were thereby required and count for, and pay over to the committee directed to take a sufficient security by one of the company, all such sums as should or more bond or bonds, in a sufficient come to their or any of their hands, cuspenalty or penalties from their treasurer tody, or control, as treasurers; and in case for the time being, for the faithful execu- they should not so account for and pay tion by such treasurer of such office. such monies, then that the company should

The office of treasurer to the canal sell the sliares, or a competent part thereof, company having become vacant, Messrs. and apply the proceeds in payment of such Dilworth, Arthington, & Birkett, bankers sums as should have been received by the in Lancaster, were appointed treasurers on treasurers, and not have been by them duly the 16th of August 1822. On the 2nd of accounted for. September 1822, they entered into a joint The assignment of the shares was not and several bond in the penal sum of filed and entered as required by the act ; 20,000l., conditioned to be void, if John and the 345 shares continued standing in Dilworth, Robert Morley Arthington, and Mr. Dilworth's name in the books of the Robert Birkett,their heirs, executors, and ad- Canal Company, and had never been transministrators, should at all times thereafter use ferred by the clerk, as he was required to their best endeavours to collect, get in, and do by the 83rd section. The petition and receive all such sums of money, as were, or affidavit stated, that the transfer and deed thereafter should become due and payable of trust were, at the time of the dates thereof, to the company of proprietors, from the duly executed, and were left, by the parties proprietors of any share or shares in the thereto, with the clerk of the said company, navigation, or from any other person or at the office of the company in Lancaster. persons whomsoever, when and in such manner as they or he should be directed by A commission of bankrupt having issued the said company of proprietors, or their against Dilworth, Arthington, & Birkett, the committee, and should from time to time Canal Company presented a petition, stating, truly and justly account for, and pay and that the said treasurers, at the time of apply such sum and sums of money, and their appointment, agreed to “ keep the acalso every sum and sums which should be count of the nionies received by them, as received by virtue of the said office, unto such treasurers, as a banking account, and such persons, and for such purposes as the that interest should be received or allowed said company of proprietors, or their com- by them, according as the balance of cash in mittee, should direct, &c.

their hands was credit or debit ; that, acOn the 3rd of September, 1822, Mr. cordingly, a banking account was opened Dilworth, being possessed of 345 shares in at the said banking-house by them, as such the canal, which stood in his name, by in- treasurers, and interest was charged in such denture of that date, transferred and as- account on the balance from time to time signed 300 shares to the company of pro- due thereon, and was credited or debited to prietors, to hold the same to them, their the company, according as the balance hapsuccessors and assigns ; and, by another in- pened to be in their favour or against them; denture, made and executed by and between that, at the issuing of the commission, there Dilworth, of the one part, and the company was due and owing to the company from the of the other part-reciting the bond, and bankrupts, upon the account aforesaid, for

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cash and interest, the sum of 8,7031, 15s. 5d.as a proprietor. But, it does not say, that, The petition insisted, that the company had until the deed shall be so delivered and a valid equitable lien or mortgage on the 300 filed, and entered, the purchaser shall have shares for the sum of 8,8351. 10s. 11d. and no interest in the share :—it merely is interest; and it prayed, that the 300 shares a suspension of the receipt of casual profits might be sold, and that the monies which as they incidentally arise-a withholding should arise by the sale, after deducting those profits from the assignee, -until the thereout the costs and charges of the sale deed, or duplicate of the deed, be delivered, and the petition, might be applied in dis- duly filed, and entered ; and the act of parcharge of the said debt.

liament has said, that it shall be lawful for

the proprietors to sell and dispose of their The petition came on before the Vice shares, prescribing a form; and the particuChancellor.

lar form of the conveyance was adopted in It was opposed by the assignees, on the this case, though the duplicate was not deground, that the shares, never baving been livered, and, of course, not filed and entered. transferred as required by the act, into the

I should think, that the only consequence names of the Canal Company, but remaining of that would be, that, in respect of any in the name of Mr. Dilworth, at the time of past profits, the company could not avail his bankruptcy, passed to the assignees, by themselves of the assignment. virtue of the statute of James, as being in the order and disposition of the bankrupt. It was not attempted to be disputed, that,

generally speaking, chattel interests are not The Canal Company relied on the case of within the statute of James, or the 72d section The Vauxhall Bridge Company (1), wherein of the present Bankrupt Act. But it has been the Vice Chancellor, Sir J. Leach, decided, said, that the interest in this particular Canal that shares in that company were not within Company cannot be assimilated to a chattel the statute of James, as the corporation was

interest in land. Now, it appears that this seised of real estate.

company was formed for the purpose of

making a canal, and for that purpose they The judgment of the Vice Chancellor, Sir were empowered to purchase land. It has L. Shadwell, was as follows :

been observed, that the profits of the canal The question is, whether the company of were not profits arising from the land : in proprietors are entitled to avail themselves of my opinion, they were, directly and properly the imperfect assignment which has been speaking, profits arising from land; because made. It appears to me, that there is nothing they were nothing more than monies which in the act of parliament, which prevents them should arise from persons who purchased from availing themselves of the assignment. the liberty of going over the land, that is, It is perfectly true, that the act of parlia- the land and water of the Canal Company, ment has directed (sec. 79), that it shall be and, for that privilege, paid the tolls: therelawful to and for the several proprietors of fore, the profits appear to me to be profits the navigation to sell and dispose of his, her, arising from land. Then the act of parliaor their share or shares therein, and that ment has said, in the 63rd section, that the every purchaser shall have a duplicate ; and shares shall be personal estate, and transone of the deeds, duly executed by the seller missible as such. So, terms of years

would and purchaser, shall be delivered to the com- be personal estate, and transmissible as such; mittee or clerk, to be filed and kept for the but it never can be said, that, merely because use of the company; and until such dupli- an interest in land is personal estate, therecate of such deed shall be so delivered to fore it is transmissible precisely in the same the said committee or their clerk, and filed manner as goods and merchandize are, which and entered as above directed, such pur- may be in the hands of a merchant, or any chaser shall have no part or share of the other person dealing as a trader. The shares profits of the said navigation, nor any interest are to be deemed personal estate, and shall of his said share paid to him, nor any vote be transmissible as such : that means, trans

missible as between the representatives of (1) Glynn & Jam. 101.

the parties who hold the shares.

The act has prescribed, that the shares shall dividual is a share or shares in the profits, be assigned by deed, treating the subject, in and nothing else. the form of the conveyance, as something in The real estate, which is vested in the the nature of a chattel interest in realty; if company, is an estate in fee: if the interest it had been meant, that th

should pass as

of the shareholder is real estate, how comes general personal estate, not of the nature it to have none of the qualities of the only of real estate, a different mode of convey- real estate with which the shares have any ance, I should have conceived, would have connexion ? It is not, in itself, a chattel been adopted. Then, it has been alleged, interest; for here there is nothing analothat a great deal of mischief may arise from gous to a term of years. If it is not a chatsustaining such a transaction. I should tel interest, and is not (as it is admitted think that mischief was not very likely to that it is not) freehold, what can it be bat arise thus; because, here, the assignment personal estate? It is said, that it is of the having been made to the company, and they nature of a chattel real. No such property having delivered it to their clerk, it is not is known to the law. Either it is a chattel very likely that any purchaser could have real, or it is not; if not, where are the words been deceived: the moment he came to per- in the act of parliament, creating a species of fect the conveyance, the matter would have property which is neither a freehold interest, been made manifest to him.

nor a chattel real, nor a personal chattel? With respect to the general credit, which Would such shares, for the purposes of promight arise through searching the books, bate or administration, be considered as chatwhich the act has directed to be kept, it is per- tels real, or purely personal ? If they are chatfectly true, that might be so; but then the tels real, they would be bona notabilia in every question is, whether the act of parliament diocess or peculiar through which the canal has put a complete negative upon any such passed, like a lease for years, or other chattransaction as this. It does not appear to

tels real, which are bona notabilia where me, that it has done so. Therefore, inas- the land lies : Comyns's Digest, tit. “Admuch as there is, to a limited extent, a pur- ministrator,” (B. 4.) Now, in Ex parte chase made by the company of the shares, Horne (1), it was argued, that shares in the it appears to me, that the company will be Worcester Canal, which were declared by at liberty to avail themselves of the present the act incorporating the company to be assignment, so far as to comprehend the made personal property, were bona notafuture profits.

bilia in every diocess through which the

canal passed; but the Court decided, that Against this decision the assignees pre- they were bona notabilia where the transfers sented a petition of appeal.

were filed; thereby establishing the docThe Solicitor General, Mr. Knight, and

trine, that they were not chattels real, but Mr. Geldart, were for the appeal :

chattels purely personal, and, consequently, Mr. Rose, Mr. Montague, and Mr. Duck

bringing them within the operation of the worth, contrà.

Bankrupt Act, as to reputed ownership.

Such a case as this is clearly within the In support of the appeal, it was argued, mischief, which the 72nd section of the that, though the company, as a corporation Bankrupt Act, and the corresponding proaggregate, have real estates, the property of vision in the statute of James, were ineach individual member consists not of real tended to prevent. Here Dilworth apestate, but of his shares in the general funds peared to all the world as the absolute of the company, which shares are expressly owner of these shares; and thereby obmade personal estate by the words of the tained or might have obtained a false credit. act. If the act merely intended to make As to the case of The Vauxhall Bridge the shares personal estate, for the purpose Company, it is clear, that there the question of transmission by sale, or on death, or was not very much considered. It was there otherwise, other words would have been assumed that the shares were not perused; whereas the whole scope of the act sonalty. is to treat them as personal estate for all purposes. The actual interest of each in- (2) 7 B. & C. 633 ; s.c. 6 Law Journ. K.B. 173. On the other hand, it was argued, that But there is a clause in the act of parliathe law must be considered as settled by the ment, by which the general law and the case of The Vauxhall Bridge Company, the general rule in this respect, is controlled. authority of which had never till now been It is by an express provision in the act of doubted. Independently of authority, the parliament, expressed in the most general interest of the shareholder was a right to terms, declared, that those shares shall be profits arising out of land ; and though the considered as personal estate, and transmisact made the shares personal estate for the sible as such. Nothing can be more genepurposes of transmission, they still conti- ral than the terms. But it is contended at the nued to be a species of property which bar, in the first place, that the shares were to savoured of the realty. The bankrupt would be considered as personal estate only for not have gained false credit by them: for the purpose of transmission to the personal it was only to other shareholders that representatives of the shareholders. The the circumstance of the shares standing in words do not authorize such a limited conhis name could be known. The public at struction. large had no right to inspect the books of The words are- —that they shall be perthe company; in fact, there was not in the sonal estate, and be transmissible as such. bankrupt such an apparent possession as It is then contended, that they are to be could deceive any one.

considered as chattels real. On what arguIn a case of so much importance, the ment, however, that is founded, I find it Court, at least, would not overturn the difficult to collect: why they are to be conprinciple established by the Master of the sidered as chattels real, or why the legislaRolls, without giving the Canal Company ture should have meant that they should be an opportunity of obtaining the opinion of considered as chattels real, not having so a court of law,

expressed it, I find no means whatever to collect. The persons, who are shareholders,

are absolute holders of the entire interest. On the first day of Michaelmas term, in the property, whatever that is. The and while the appeal stood for judgment, legislature has declared it shall be personal the respondents presented a petition, pray- estate ; and there is nothing whatever in the ing, that, before judgment was given, the act of parliament that I can discover, at all question might be re-argued, or a case controlling the effect of that provision. directed for the opinion of a court of law. If that be so, the consequence follows,

that this property, if held by the bankrupts The Lord Chancellor. Dilworth and at the time of their bankruptcy, would have Company, who are bankers, carrying on passed to their assignees; but that is not business in the county of Lancaster, were the question in this case. The question is, the treasurers of the Lancaster Canal Com- whether the property was under the order pany, which was incorporated by act of and disposition of Dilworth as the reputed parliament in the year 1792, and had the owner. power of purchasing and holding lands as At the time Dilworth and his partners a corporation for the purpose of that con- became treasurers of the concern, they cern. They held, and now hold, real pro- entered into a bond in the penalty of 20,0001. perty, and the proceeds arising from that for the purpose of indemnifying the comconcern are proceeds arising out of a real pany against any loss which might arise in estate. For the purpose of carrying on the consequence of their failing properly to acconcern, it became necessary to raise a count. In addition to this bond, Dilworth, certain sum of money; that sum of money who at that time was the holder of 345 shares, was raised by a subscription for shares, and transferred 300 shares to the company, and the shareholders were entitled, under the a trust deed was executed, by which the comprovisions of the act of parliament, to the pany undertook to pay the dividends of the profits of the concern. As the case, there- shares to Mr. Dilworth, until there should fore, thus stands, these profits, which the be some default on the part of the treashareholders are entitled to receive, are surers; and, in case of such default, they profits arising out of real estate.

were to have the power of selling the shares The act has prescribed, that the shares shall dividual is a share or shares in the profits, be assigned by deed, treating the subject, in and nothing else. the form of the conveyance, as something in The real estate, which is vested in the the nature of a chattel interest in realty; if company, is an estate in fee: if the interest it had been meant, that they should pass as of the shareholder is real estate, how comes general personal estate, not of the nature it to have none of the qualities of the only of real estate, a different mode of convey- real estate with which the shares have any ance, I should have conceived, would have connexion ? It is not, in itself, a chattel been adopted. Then, it has been alleged, interest; for here there is nothing analothat a great deal of mischief may arise from gous to a term of years. If it is not a chatsustaining such a transaction. I should tel interest, and is not (as it is admitted think that mischief was not very likely to that it is not) freehold, what can it be bat arise thus; because, here, the assignment personal estate? It is said, that it is of the having been made to the company, and they nature of a chattel real. No such property having delivered it to their clerk, it is not is known to the law. Either it is a chattel very likely that any purchaser could have real, or it is not; if not, where are the words been deceived: the moment he came to per- in the act of parliament, creating a species of fect the conveyance, the matter would have property which is neither a freehold interest, been made manifest to him.

nor a chattel real, nor a personal chattel? With respect to the general credit, which Would such shares, for the purposes of promight arise through searching the books, bate or administration, be considered as chatwhich the act has directed to be kept, it is per- tels real, or purely personal? If they are chatfectly true, that might be so; but then the tels real, they would be bona notabilia in every question is, whether the act of parliament diocess or peculiar through which the canal has put a complete negative upon any such passed, like a lease for years, or other chattransaction as this. It does not appear to tels real, which are bona notabilia where me, that it has done so. Therefore, inas- the land lies: Comyns's Digest, tit. “Admuch as there is, to a limited extent, a pur- ministrator," (B. 4.) Now, in Ex parte chase made by the company of the shares, Horne (1), it was argued, that shares in the it appears to me, that the company will be Worcester Canal, which were declared by at liberty to avail themselves of the present the act incorporating the company to be assignment, so far as to comprehend the made personal property, were bona notafuture profits.

bilia in every diocess through which the

canal passed ; but the Court decided, that Against this decision the assignees pre- they were bona notabilia where the transfers sented a petition of appeal.

were filed; thereby establishing the docThe Solicitor General, Mr. Knight, and

trine, that they were not chattels real, but Mr. Geldart, were for the appeal :

chattels purely personal, and, consequently, Mr. Rose, Mr. Montague, and Mr. Duck- bringing them within the operation of the worth, contrà.

Bankrupt Act, as to reputed ownership.

Such a case as this is clearly within the In support of the appeal, it was argued, mischief, which the 72nd section of the that, though the company, as a corporation Bankrupt Act, and the corresponding proaggregate, have real estates, the property of vision in the statute of James, were ineach individual member consists not of real tended to prevent. Here Dilworth apestate, but of his shares in the general funds peared to all the world as the absolute of the company, which shares are expressly owner of these shares; and thereby obmade personal estate by the words of the tained or might have obtained a false credit. act. If the act merely intended to make As to the case of The Vauxhall Bridge the shares personal estate, for the purpose Company, it is clear, that there the question of transmission by sale, or on death, or was not very much considered. It was there otherwise, other words would have been assumed that the shares were not perused; whereas the whole scope of the act sonalty. is to treat them as personal estate for all purposes.

The actual interest of each in- (2) 7 B. & C. 639 ; 8.c. 6 Law Journ. K.B. 173.

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