the several shareholders or co-partners, it follows that under the purchase deed there was a resulting trust as to the fee-simple and inheritance for their benefit; so that each of them would be entitled to a share in the beneficial interest therein, proportioned to his share of the purchase money. The partnership deed does not alter the proportions in which the parties are interested; nor does it confer on any stranger any portion of the interest in the land; it only regulates the mode in which the property shall be managed and enjoyed, according to the quantity of interest of each shareholder therein. And the estate, to use the language of Lord Eldon, in Crawshay v. Maule, 1 Swanst. 521, speaking of a freehold estate purchased by a partnership for trading purposes, "though personal in enjoyment," is "freehold in nature and quality;" and it is to the nature and quality of the estate we are to look, and not to the mode of enjoyment, when we have to decide whether it confers a vote.
It was objected on the part of the appellant, that the case of Bligh v. Brent, 2 Y. & C. 268, was an authority against the claimants, inasmuch as it proved that the shares of a company, the profits whereof were derivable from land, were personal property, not real. But we think it sufficient to advert to a broad ground of distinction between that case and the present. In the case referred to, the company, that of the Chelsea Water Works, was a corporation created by act of parliament, and charter from the Crown, of which the individual shareholders were corporators. The whole of the real property was vested in a corporation aggregate, who had the sole management and control thereof, having power to convert it into personalty, or back again into realty, at their free pleasure; the individual corporators having, as individuals, no more interest in the freehold than perfect strangers, and no interest in the surplus profits of the concern, until they actually arose. In the present case, the freehold is in the trustees for the benefit of the individual co-partners in
BAXTER Appellant, NEWMAN
Respondent.
BAXTER Appellant, NEWMAN Respondent.
a trade to be managed and conducted by a committee appointed by themselves. In many other cases of shareholders in joint-stock companies, where the company has been incorporated by act of parliament, the legislature has expressly declared that the "shares be deemed personal estate, and transmissible as such, and not of the nature of real property." Such was the case of The Vauxhall Bridge Company, 1 Gl. & Jam. 101, of The Lancaster Canal Company, Mont. & Bligh, 112, and other cases; in which cases it may well be conceded that there could be no freehold interest in the several shareholders, so as to entitle them to vote; whereas, in the case before us, there is no other than a voluntary declaration by the parties themselves, that the real estate shall be considered as personal.
Upon the principle, therefore, that land and mills built thereon, are the basis and subject-matter of the trade out of which the profits arise, which are to be distributed amongst the shareholders; that the trusts relate only to the management and conduct of the land and mills, and the trade carried on by means of the same; that there is no trust declared which is inconsistent with an equitable interest in the freehold in the respective shareholders; that the co-partners are, by their committee, in possession; and, lastly, that the value of each man's share is sufficient to enable him to vote; we think the shareholders had an equitable seisin in a sufficient estate to entitle them to vote for the county.
As to the objection raised against the right of the two particular claimants, Bateman and Brookbank, we see no ground whatever for considering money borrowed by the trustees on bonds and notes, as having the effect of mortgages on their shares; and, indeed, this objection was little relied upon in argument.
On the whole, we think the decision is right, and that it ought to be affirmed.
ACKNOWLEDGMENT.
See STATUTE OF LIMITATIONS.
ACT OF PARLIAMENT.
See WINCHESTER PAVING ACT.
ARBITRATION.
I. Referring back Award for Amend-
An arbitrator having made an award
in which the plaintiff was described by
a wrong Christian name, the Court sent
it back to him to correct-the order of
reference containing a clause for refer-
ring it back for amendment. Howett v.
Clements, 851.
II. Time for moving to set aside Award.
An award was made on the 23rd of
March: the plaintiff moved to set it aside
on the last day but one of the following
Michaelmas Term, for an objection of
which he had knowledge on the 8th of
May:-Held, that the application was
too late, notwithstanding a fiat had is-
sued against the plaintiff before the date
of the award, and he did not receive a
copy of it until the 8th of November.
Hemsworth v. Brian, 842*.
ARREST OF JUDGMENT.
See COALS.
To a count in trespass charging the
defendant with having assaulted the
plaintiff on board a ship on the high
seas, and forcing and compelling him,
he then being sick, to stand and remain
standing on the deck for the space of
one hour, the defendant pleaded a jus-
tification as to the forcing and compel-
ling the plaintiff to stand and remain
standing upon the deck:-Held, bad,
as attempting to justify that which was
mere matter of aggravation. Griffiths
v. Dunnett, 836.
Consideration, where sufficient.
The plaintiff declared in assumpsit
upon an agreement whereby-after re-
citing that one W. in his lifetime mort-
gaged certain premises to R. and B. to
secure 35007.; that R. and B. required
W. to procure the plaintiff to join him
in a bond as a collateral security for
that sum and interest; that the defend-
ant had since the death of W. taken
upon himself the management of the es-
tate of W., and had paid to R. and B.
33701.; that the plaintiff had been call-
ed upon as surety and had paid to R.
and B. 1307.; that the defendant had re-
paid him 487., leaving 827. due; that
the defendant had agreed to repay the
plaintiff the 821. out of the monies which
might arise from the sale of the mort-
gaged premises, and in the meantime to
appropriate the rents towards payment
of the same, as the plaintiff had a lien
upon the premises for the same; that
the defendant had requested the plaintiff
to release and convey all his estate and
interest in the premises to A. and L.,
which he had done, reserving his lien—
it was witnessed, that, in consideration
of the plaintiff's having paid the 1307.
to R. and B. in part discharge of the
mortgage, and in consideration of his
having released and conveyed all his
estate and interest in the premises to A.
and L., and in order to secure to the
plaintiff the re-payment of the 827., the
defendant undertook and agreed with
the plaintiff to pay him the same, with
interest, out of the proceeds of the pre-
mises when sold, and in the meantime
to appropriate the rents in liquidation
of the same. The declaration then pro-
ceeded to state, that, in consideration of
the premises, the defendant promised
the plaintiff to perform the agreement;
and alleged for breach, that, although
the defendant had received rents to a
sufficient amount, he had failed to pay:
-Held, that, as the declaration did not
shew that the plaintiff had any interest
in the premises except that which he
reserved, his release and conveyance,
though executed at the defendant's re-
quest, formed no legal consideration for
the promise alleged to have been made
by the defendant. Kaye v. Dutton.
495.
ASSURANCE.
See INSURANCE.
ATTORNEY.
I. Plea of Privilege.
A privileged person sued with one
unprivileged, loses his privilege. Held,
therefore, that an action was well
brought in this Court against three per-
sons, all of whom were attornies of the
Court of Queen's Bench, one of them
being also an attorney of this Court.
Rastrick v. Beckwith, 716.
II. Reference of Bill for Taxation.
The statute 6 & 7 Vict. c. 73, s. 37,
gives no jurisdiction to a Judge of a
Court of law to refer to taxation a bill
for business no part of which has been
transacted in any Court of law or equi-
ty, although an action may be pending
therein. Bush v. Sayer, 756.
III. Judgment for Costs under 6 & 7
Vict. c. 73, s. 43.
Intituling Affidavits.]—Upon a mo-
tion for judgment under the 6 & 7 Vict.
c. 73, s. 43, the affidavit must be inti-
tuled in the matter of the attorney or
solicitor, and not in the name of any
cause. In re Thomas Hair, 231.
The original order for taxation hav-
ing been intituled in a cause, as well as
in the matter of the attorney:-Held,
that, on an application for an order
under the 6 & 7 Vict. c. 73, s. 43, the
affidavit might be similarly intituled.
In re Vallance & Beioley, 232.
IV. Lien for Costs.
A cause and all matters in difference
were referred, a third party consenting
to be made a party to the reference.
The arbitrator directed a verdict to be
entered for the defendant in the action,
but directed that the third party should
pay to the plaintiff a sum of 521. 10s.
and the costs of the reference and award.
The plaintiff having become bankrupt,
the party by whom the money was di-
rected to be paid declined to pay it
without authority from the plaintiff's
assignee:-Held, that the plaintiff's at-
torney, who had a lien upon the award
for costs due to him from the plaintiff,
was not entitled to an order upon the
third party, under the 1 & 2 Vict. c. 110,
s. 18. Holcroft v. Manby, 473.
See ARBITRATION-INCLOSURE ACT.
I. Rights and Duties of Assignees.
1. The Court will not allow an irre-
gular writ of fi. fa. to be amended to
the prejudice of the intervening rights
of assignees. Brooks v. Hodson, 223.
2. The defendant having purchased
of one T. timber which was warehoused
in T.'s name in the West India Docks,
contracted to sell it to P. & Son, re-
ceived from them a bill at seven months'
date for the price, and gave them a
delivery order. The dock company
declined to act upon this order, but re-
quired the order of T. P. & Son, after-
wards, and before T.'s order was ob-
tained, became bankrupt, the bill re-
maining unpaid. The defendant after-
wards obtained the timber from the
docks :-Held, that the assignees of P.
& Son were not entitled to maintain
trover for the timber, and that the de-
fendant was not estopped by the order
given by him from intercepting the de-
livery. Lackington v. Atherton, 38.
3. On the 29th of December, 1842,
the defendant distrained for 1207. arrears
of rent due to him from one May at the
preceding Michaelmas, the goods of
May being then in the possession of one
C., to whom they had on the 13th of
December been conveyed in trust for
May's creditors: on the 3rd of January,
1843, it was agreed between C. and the
defendant that the rent distrained for
should be paid, the defendant consent-
ing to forego the quarter's rent due at
Christmas; and accordingly the goods
were appraised and condemned at 1367.,
being the amount of the rent and ex-
penses, and the money handed over to
the defendant. On the 9th of January,
a fiat issued against May, the act of
bankruptcy relied on being the execu-
tion of the deed of the 13th of Decem-
ber:-Held, that the assignees were not
entitled in an action for money had and
received to recover back the sum so
paid to the defendant. Lackington v.
Elliott, 275.
II. Protected Transactions.
Notice of Act of Bankruptcy.]-Quære,
whether a "distress" is a "transaction"
within the protection of the 2 & 3 Vict.
c. 29; and, if so, whether a notice of
the act of bankruptcy given to the bro-
ker's man would be sufficient to bind
the defendant. Lackington v. Elliott,
275.
A notice that a party has executed a
conveyance of all his property for the
benefit of his creditors, is a good notice
of an act of bankruptcy. Ib.
III. Rights and Duties of the Messenger.
The assignees of a bankrupt are not
bound to continue the services of a
messenger appointed by the commis-
sioners. Robson v. Jonassohn, 35.
IV. Proceedings under 5 & 6 Vict. c.116.
1. In assumpsit for work and labour,
&c., the defendant pleaded in bar of the
further maintenance of the action, that
he, before the commencement of the
suit, then not being a trader, and hav-
ing then resided for twelve calendar
months in London, and, according to the
directions and provisions of the 5 & 6
Vict. c. 116, having then given due notice,
did then duly present a petition for
protection from process to the Court of
Bankruptcy, &c.; and the plea then
went on to allege, that, after the filing
of the said petition, and after the con-
tracting of the debts and causes of action
in the declaration mentioned, and after
the commencement of the action, Mr.
Commissioner F., then being a commis-
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