is considered in the judgment in Bulmer, app., Norris, resp., where Baxter, app., Brown, resp., 7 M. & G. 198 (nom. Baxter, app., Newman, resp., 8 Scott N. R. 1019, 1 Lutw. Reg. Cas. 287), is referred to. It will be said that the point was not expressly decided in Baxter, app., Brown, resp. But the opinion of the court seems to leave no room for doubt. "In general," say the court, "there can be no *526] *question but that for all purposes necessary to effectuate the intention of the parties, personal estate may be considered as real, and real estate as personal, by a court of equity; as in the ordinary instance of money agreed or directed to be laid out in land; and so in the instance of a real estate under an absolute trust or direction to sell and against this general rule our decision in the present case will not in any manner militate. But, notwithstanding this acknowledged doctrine of the court of equity, no one can deny that the land still remains land, and nothing else; and there is no authority or decision, that, for the collateral purpose of giving a vote, which has no bearing upon or reference whatever to the objects of the copartnership, the right of the cestui que trust should not remain just as it would have been without such declaration of trust. For, as to the declaration by the copartners in the deed, 'that the lands and buildings shall be deemed and considered as or in the nature of personal estate, and not real estate,' we think the generality of these words must necessarily be limited by the subject-matter of the trusts declared by the deed, and that they can extend no further than the object and purposes of the deed require: and, further, we think it may be considered as a very doubtful question whether the private agreement of parties, or any authority short of that of an act of parliament, can deprive the owners of the freehold of the right of voting for a member of parliament, which is a right inherent in the owners of the freehold, not for their own benefit, but for that of the community of which they form a part. But, however that may be, it appears to us such right is left altogether untouched by the objects and purposes for which the trusts of the deed now under consideration are created and declared." The authority of that case stands unimpeached by anything said in the judgment in Bulmer, app., Norris, resp.

*Welsby (with whom was Grantham), for the respondent.-As

*527] to the second question, whether the interest of the shareholders in this company is realty or personalty, since the decision of this court in Baxter, app., Brown, resp., the rule by which it is governed has been correctly stated by Mr. Rogers (9th edit. 21) thus," With regard to shares in navigable rivers, canals, &c., the legislature has in many cases declared them to be real property; in others, where no such express declaration has been made, but where the shareholders in respect of their shares are actual proprietors of the soil, or where they have such rights arising in and out of the soil as amount to an incorporeal hereditament, the law considers them real property. In other cases, where their right amounts to an easement only, there is no interest in land: Buckridge v. Ingram, 2 Ves. jun. 652; The King v. Palmer, 1 B. & C. 546 (E. C. L. R. vol. 8), 2 D. & R. 793; The King v. The Earl of Portmore, 1 B. & C. 551, 2 D. & R. 798; The King v. Thomas, 9 B. & C. 128 (E. C. L. R. vol. 17); The King v. The Aire and Calder Navigation, 3 B. & Ad. 139 (E. C. L. R. vol. 23).

The principle upon which the right of voting depends in these cases, seems to be as follows,-first, when the shareholders form a part of a corporation aggregate, and the property is vested in the corporate body, the individual corporators cannot vote,-secondly, where the shareholders do not form part of the corporate body, but have only a right to share in the real produce of the property of the company, whatever that may be, they cannot vote, because such an interest is personal property only, unless there is something in the act showing a contrary intention; Bligh v. Brent, 2 Y. & C. 268, 3 M. & W. 422, -thirdly, where an act of parliament declares the shares to be personal estate, no vote can arise out of it; 8 & 9 Vict. c. 16, s. 7,— fourthly, if, as in the the New River case, the individual corporators have the property vested in themselves, the corporation [*528 having only the management of it, the individual corporators would probably be entitled to vote. The only difficulty in such a case is, to ascertain in what place the party has a sufficient interest in land to entitle him to vote, as in the instance of the New River, which runs through several counties: 2 Ves. 182,-fifthly, if there be no act of incorporation, but lands are purchased, and conveyed to certain individuals, who execute a deed of trust to divide the surplus profits among the subscribers, the shares of the latter would not the less be personal estate because land was employed as the instrument to produce such profit; and, as such subscribers take no interest in the land, they would not be entitled to vote. But, if, on the other hand, the land be conveyed to the subscribers themselves, or to trustees for their use, they would then be in the possession of the land, and entitled to vote. The case of Baxter, app., Brown (or Newman), resp., seems to establish this last proposition. In that case, A., B., C., and D. subscribed money, which was applied to the purchase of freehold land conveyed to A. and B. in fee, and to the erection of a mill built on the land, and to the buying of machinery for the use of the mill. By a partnership deed executed by the four, it was declared that A. and B. should stand seised and possessed of all the estates real and personal of the partnership, in trust for themselves and the other partners as part of their stock in trade,-that the land and mill should be deemed personal and not real estate, and be held in trust as part of the stock in trade. A. and B. had also power to mortgage, which they did not exercise, but borrowed money, giving their own bonds and notes as a security. It was held that each partner took an equitable interest in the realty to the extent of the amount of his shares, and *that the clauses declaring that the lands, &c., should be considered as personalty, did not extend beyond the [*529 regulation of the enjoyment of the property. The court expressed a doubt whether anything short of a statute could deprive the owner of a freehold of his elective franchise." Here, by the very constitution of the company, the shareholders have no interest in the land itself, but only in the profits. In Bligh v. Brent, 2 Y. & C. 268, it was expressly held that real estate held for the purposes of a trading company, is, in equity, to be deemed in the nature of personal estate, although the company is a corporation, and the shares are assignable, and one shareholder is not answerable for the acts of another in relation to the partnership concern. [WILLIAMS, J.-In Myers v.

Perigal, 11 C. B. 90 (E. C. L. R. vol. 73), this court held that shares in a banking company, where the real estate was vested in trustees, and the shareholders were entitled to profits only, were not within the mortmain acts.] And that was confirmed by Sir L. Shadwell, V. C., Myers v. Perigal, 16 Simons 533, and by Lord St. Leonards, Myers v. Perigal, 2 De Gex, M'N. & G. 599. The transfer of the shares here is to be made in a manner which is wholly inapplicable to the passing of real estate. Baxter, app., Brown, resp., was a totally different case from this. That was a private partnership. Each of the partners had an interest in the real estate, because each subscribed money to buy the land. The conveyance, it is true, was to two of them only, but in trust for themselves and their partners. It was clearly an equitable freehold in the cestui que trust. [WILLIAMS, J.— Speaking of Baxter, app., Brown, resp., in Myers v. Perigal, 2 De Gex, M'N. & G. 622, Lord St. Leonards says: "I have some difficulty in reconciling that case with the late authorities: but, looking at the act of parliament regulating the qualification to vote, it gives the same *530] right to vote "in respect of an equitable interest as of the legal ownership; and the decision, therefore, only amounted to this, that the right to vote being conferred by act of parliament, could not be taken away except by act of parliament. If such was not the effect of that decision, it is undistinguishable from the later decision of the same court, which has now certified that this case does not fall within the Statute of Mortmain. I am consequently relieved from the weight of the authority of Baxter, app., Brown, resp."] The deed there could not be permitted to control the act of parliament giving the vote.

Hannen, in reply.-In no case has such a question as this been. raised, except in the case of a corporation. [WILLIAMS, J.-Myers v. Perigal was not the case of a corporation. Welsby. Neither was Watson v. Spratley, 10 Exch. 222: that was the case of shares in a cost-book mine. WILLIAMS, J.-In Williams v. Hall, 6 De Gex, M'N. & G. 74, it was held by Lord Cranworth that shares in an incorporated company are not an estate or interest in land within the meaning of the Statute of Mortmain; nor does it make any difference that the act of parliament incorporating the company does not contain a clause declaring the shares to be personal estate. He puts it as a settled point.] Individuals cannot, it is submitted, by agreement among themselves, alter the nature and incidents of real property. Though the legal estate is in the trustees, the proprietors reserve to themselves the full control over it by their committee of management. The case, therefore, cannot be distinguished from that of an ordinary partnership, one member of which is permitted to hold the land, the others directing how it shall be employed. [KEATING, J.— Would an original shareholder by transferring his shares cease to have an interest in the freehold ?] The transferee would *531] become the cestui que trust, and he would thus acquire such an equitable interest as to confer on him a vote, leaving the legal estate where it was.

ERLE, C. J.-I am of opinion that the revising-barrister in this case was right in holding that the franchise was not gained. He was right in respect of one of the points taken before him, viz., that the shares

in this company were not an interest in land. As to the other point, I think he was wrong in holding that the shareholders were in the nature of a corporation. The company was formed for the purpose of establishing a Corn Exchange in Manchester. The deed shows how the land was to be held,-the legal estate to be vested in trustees for ever. The committee of management was by means of rents and subscriptions to make profits out of the undertaking, and, after payment of expenses und outgoings, to divide the surplus amongst the shareholders. The effect of that deed in my opinion is, to give to each shareholder a right to his share of the profits, but not to confer upon him any right in the land which is vested in the trustees. It is clear that that was the intention of the deed. The declaration that the shares are to be deemed personal estate only, the mode of transfer, which is inconsistent with the rules of law as to the transfer of real estate, and the whole tenor of the deed, seems to constitute a sort of interest which is well known and has frequently been the subject of consideration in dealing with joint-stock companies. Is there, then, any law which prevents that intention from having effect? The members of these associations may agree that the land shall be held by the trustees in such manner as they may think fit. The legal estate is by the 40th and 46th clauses declared to be vested in the [*532 trustees, who are to act under the direction of the committee of management, having themselves very limited powers. The committee are to form the governing body, letting the rooms and cellars, &c., and doing all those things which are to produce profit to the shareholders. That is the nature of the contract which these persons have entered into. The case of Bulmer, app., Norris, resp., where a very learned and elaborate judgment was given by one of my Brethren, goes very fully into the authorities. It was a case of a joint-stock company incorporated under the 19 & 20 Vict. c. 47 and 20 & 21 Vict. c. 14: but it is assumed in the judgment that there may be many forms of companies contemplating the vesting of their lands in trustees, the members or shareholders having a right to participate in profits, but possessing none of the rights and burthened with none of the liabilities which belong to the proprietors of real estate. So it is with respect to companies taking advantage of the provisions of the Joint Stock Companies' Acts. Such also is the very learned judgment of Martin, B., in the case of Watson v. Spratley, 10 Exch. 222, to the effect that shares in a company established for the purpose of working a mine on the cost-book principle,-the mine being vested in the purser, and the co-adventurers being only entitled to a share of profits, were not an interest in land within the 4th section of the Statute of Frauds. Although the judges were divided as to whether or not the opinion of the jury should have been taken upon the facts, yet they all agree, that, if the purser of the mine, who had himself the set or grant of it, had the mine and machinery and plant vested in him in trust to employ the machinery in working the mine and making the most profit of it for the benefit of the co-adventurers, who were to share the profit only, such interest was *transferable [*533 by parol, and night be bargained for by parol. My Brother Martin, after referring to Bligh v. Brent, 2 Y. & C. 268, and Duncuft v. Albrecht, 12 Sim. 189, for the purpose of showing that shares in

an incorporated (by act of parliament) joint-stock company, a part of whose capital stock consists of land, do not constitute an interest in land, goes on to say: "This being the well-established law in regard to shares in incorporated joint-stock companies, the present question is, whether it be different in regard to shares in unincorporated ones. It would be unfortunate if it were found to be so. I think, however, there is no such difference. In substance and reality, the interest of the shareholder in the mining unincorporated company and in the incorporated joint-stock company is exactly the same. In both it is an interest in the ultimate profits. In neither can the shareholder directly intermeddle or deal with the land; and although apparently in a mining company the interest of the shareholder in land seems to be greater than in ordinary trading joint-stock companies, nevertheless almost all trading companies have houses or land, and without them their business could not in general be carried on, as was ob served by the Vice-Chancellor in Hilton v. Giraud, 1 De Gex & S. 187." All the judges agreed, that, if the jury found that it was the intention of the parties that the land should vest in the purser, and that the co-adventurers should only be entitled to a share of profits, the law would carry that intention into effect. The case of Myers v. Perigal, where it was held that shares in such a company as this are not within the Mortmain Act, is to the same effect. And, whether the dissatisfaction of Lord St. Leonards with the decision of this court in Baxter, app., Brown (or Newman), resp., be well founded or not, the tenor of the cases to which I have adverted *satisfies me that the conclusion arrived at by the revising-barrister here

*534]

was correct.

WILLIAMS, J.-I am of the same opinion. This case must be gov erned by the principle which has been established in the several cases which have been referred to in the course of the argument, and especially in the case of Edwards v. Hall, 6 De Gex, M'N. & G. 74, where it was held by Lord Cranworth, upon a careful review of all the authorities, that shares in joint-stock companies,-canal, waterworks, and gas-light companies, are not an estate or interest in land within the meaning of the Statute of Mortmain, whether the act of parlia ment incorporating the company does or does not contain a clause declaring the shares to be personal estate. That principle has, in Myers v. Perigal, been solemnly decided to apply equally to a company not incorporated by act of parliament. The principle established by these cases is this, that a shareholder in a company of this description has no direct interest in or right to any specific portion of the property of the company, but only a right to receive a share of the profits. Applying that principle to the present case, it seems to me, that, according to the terms of the deed of settlement which governs the affairs of this company, the income of the real estate in respect of which the franchise is claimed is to be taken by the committee appointed to conduct the business of the company: and they, having received the income and made the necessary disbursements for carry. ing on the concern, are to pay over the balance to and amongst the shareholders. What each shareholder is entitled to, therefore, is, not any particular income arising from the land held by the trustees, Neither in law nor in equity is he so entitled. All he is entitled to, is