The reason

exclude joint tenants, tenants in common, and co-parceners.' assigned in Sewell on Registration, p. 28, is, that "generally speaking, in corporations aggregate, the estates seem to form one common property, which it is impossible to assign with certainty to any individual." That reasoning, however, can hardly be sound. The cases of Heath, app., Haynes, resp., 3 C. B. N. S. 389 (E. C. L. R. vol. 91), and West, app., Robson, resp., 3 C. B. N. S. 422, will probably be relied on for the respondent. But these cases have no direct bearing upon the question: in the former, the occupation was held to be insufficient; and the decision in the latter turned on the fact that the claimants had not 408. clear issuing out of lands in Durham,-the points here raised having been *overruled by the revising barrister. Simpson, app., Wilkinson, resp., 8 [*23 Scott N. R. 814, 7 M. & G. 50 (E. C. L. R. vol. 49), 1 Lutw. Reg. Cas. 168, is in favour of the appellant. Burleigh Hospital is a freehold building, divided into rooms, each of which is of the annual value of 4l., and is separately inhabited by a bedesman appointed under certain rules. Each bedesman keeps the key of his own room, and the successor of each deceased bedesman occupies the same room as did his predecessor. No charter, deed, or other document relating to the foundation could be discovered. The ordinances referred to certain feoffees and their heirs, but none were known. By these rules, which bore date the 20th of August, 1597, it was amongst other things provided that none was to be admitted who was leprous, a drunkard, adulterer, &c., and that any one so afflicted, or guilty of any of the offences specified, should be displaced; but there was no instance on record of a bedesman having ever been displaced. The bedesmen having claimed to be entitled to vote for the county in respect of their several interests, the barrister decided that a legal foundation might be presumed, not necessarily investing the claimants with a corporate character, and that they were respectively entitled to a separate freehold estate in their rooms respectively: it was held that his conclusion was right in point of law, and warranted by the facts. [BYLES, J.-There is no common seal there.] That is the only distinction between that case and the present. So, in Baxter, app., Newman, resp., 8 Scott N. R. 1019 (7 M. & G. 198 (E. C. L. R. vol. 49), 1 Lutw. Reg. Cas. 287, nom. Baxter, app., Brown, resp.), the partnership was in all respects like this, except for the seal. There, A., B., C., and D. joined in partnership to work a fulling-mill. Money was subscribed by all the partners; with one part of which freehold land was bought, which was conveyed to A. and B. in fee; with other part, a *mill was built on the land, and machinery for the mill was pur

chased. By a partnership deed executed by A., B., C., and D., [*24

the trusts of the land, mill, &c., were declared to be (among other things) that A. and B. should stand seised and possessed of all the estates, property, goods, &c., upon trust for the benefit of themselves and their partners, as part of their partnership joint stock in trade: there was a provision in the deed that A. and B. might borrow money upon mortgage of the stock, property, estates, &c., belonging to the copartnership: and it was declared that the land, mill, &c., should be deemed and considered as or in the nature of personal estate and not real estate, and be held in trust for the partners as part of their partnership stock in trade. A. and B., under the powers of the deed, borrowed money for the purposes of the partnership, for which they gave bonds and notes in their own names, but did

not mortgage any part of the property. It was held, that each partner had an interest in the realty corresponding with the amount of shares held by him in the partnership, and that the money so borrowed had not the effect of mortgages on the shares of the partners. In delivering the judgment of the court, Tindal, C. J., says: "The ground on which we consider these claimants to have such right," that is, a right to vote in respect of an equitable interest in the realty,-"is this, that the property of which the trustees are seised in trust for the benefit of the shareholders who form the copartnership, is freehold land; that the copartners by their committee are in possession thereof; that the trusts declared by the deed are no more than agreements and regulations entered into between the copartners for the better carrying on their joint trade by the means of such land and the mill erected thereon, and are not trusts which are inconsistent with an equitable seisin of the freehold in the copartners; and, lastly, that it is found by the re*25] vising barrister that the amount of the shares of each of the claimants in the real property of the company is sufficient in value to confer a vote." And, after referring to Crawshay v. Maule, 1 Swanst. 521, Bligh v. Brent, 2 Y. & C. 268,† and the cases of The Vauxhall Bridge Company, 1 Gl. & Jam. 101, and The Lancaster Canal Company, Mont. & Bligh 112, his Lordship concludes,-" Upon the principle, therefore, that the 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 copartners 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." [BYLES, J.-The case of an ordinary partnership differs essentially from that of a joint stock company. In the former, a new partner cannot be introduced without the assent of the members of the firm. Would the parties in Baxter, app., Newman, resp., have lost their right to vote if they had been completely registered under the 7 & 8 Vict. c. 110, which had then just passed, and the words of which are nearly the same as those of the 19 & 20 Vict. c. 47, and 20 & 21 Vict. c. 14?] The respondent must contend that they would. Every reason given by the court in Baxter, app., Newman, resp., is equally applicable here: and the court will not further abridge the rights of freeholders, where there are no express words of an act of parliament to warrant it. [ERLE, C. J.-Has *the exclusion of corporations aggregate ever been recognised by any act of parliament?] No.

*26]

Manisty, Q. C., contrà.-To entitle a party to be registered as an elector in respect of a freehold qualification, he must be seised of a legal or an equitable freehold of the yearly value of 40s. It is conceded that no distinction can be taken between a corporate body under the statutes referred to and an ordinary corporation aggregate. The general principle, which has never to this moment been doubted, is well stated in Grant on Corporations, p. 5,-" Continuous identity, a name, and a common seal, seem indispensable requisites to the creation of a corporation.

proper. The principal distinctions between a corporation and any other body of persons associated together for specific purposes, are, besides the attributes above mentioned, these further important characteristics, namely, that corporators in general are not liable, either civilly or criminally, for any share they may have taken in a regular corporate act within the competence of the corporation to perform: and that corporators, where the corporation is possessed either of personalty or real property, have in general no individual share, right, title, or estate to or in any specific part or portion thereof, which is wholly vested in the ideal entity or abstraction, the corporation, and not in the body of persons who happen to be at any given time the existing corporators, either jointly, severally, or as joint tenants, or tenants in common, or in any other mode or way whatsoever." These persons elect to become a corporate body with all the incidents which the law attaches to the corporate character. The shareholders in such a corporation are only interested in the profits in proportion to the value of their shares. They have no equitable seisin, as the partners had in Baxter, *app., New[*27 man, resp. There is no resulting trust. They are a perpetually fluctuating body. Take the case of a railway company whose line runs through several counties. The land vested in them is held just as this property is held. Could it be said that every shareholder would have a vote for every county in which the company holds land, provided the annual value be sufficient to give each 408. a year therein? And if so, how is the value to be ascertained? If parties choose to become trading corporations, they must be content to take the burthens with the advantages of that character. No good reason can be suggested why a trading corporation should be placed upon any other footing in this respect than any other corporation aggregate. The shares are by the statute 19 & 20 Vict. c. 47, s. 15, declared to be personal estate: and, but for the provision in s. 38, the holding of land by these companies would be within the prohibition of the mortmain acts. In Bligh v. Brent, 2 Y. & C. 268,† it was held that real property 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. In the course of the argument there, it was observed by counsel, that, "in every joint stock company, the shareholder has an estate of the same nature as the company. all the cases which have been cited that principle was taken for granted, and in the cases of real property, the widow was held dowable." But Lord Abinger, C. B., said: "If a joint stock company purchase property, each individual shareholder has an interest in it; but, the moment the company becomes a corporation, the corporation has the property in trust for the individuals. That proceeds on the *principle that a man cannot be trustee for himself." And Parke, B., says: [*28 "The difficulty arises from confounding the corporation with the persons who take the profits: those persons have no right to anything but the profits." That, it is submitted, is the true principle. The utmost these parties have, is, a right to a share in the profits. Baxter, app., Newman, resp., is in reality a strong authority for the respondent. Maule, J., in the course of the argument, there says,-8 Scott N. R. 1030,"In the case of a corporation, it is the whole body, the abstraction of

In

law, that is seised. The members are no more seised than the members of a man's body could be said to be seised of his estate." [BYLES, J.-Do you contend, that, if a partnership consisting of more than seven members becomes possessed of land, and afterwards obtains a certificate of complete registration under these acts of parliament, its members lose the right of voting?] The moment they become a corporate body their right of voting is gone.

West, in reply. The argument derived from the fact of the members of these companies being a fluctuating body, is entitled to little consideration; for, no man is entitled to have his name inserted in the register, except in respect of a property qualification held by him for the statutory period. Cur. adv. vult.

KEATING, J., now delivered the judgment of the court:

In this case Thomas Bulmer claimed to vote for the west riding of the county of York in respect of a qualification described as "share in freehold mill and tenements:" and the revising barrister found that the claimant was a shareholder in a joint stock company *incorporated *29] under the provisions of the Joint Stock Companies Acts, 1856 and 1857, and that he had 40s. a year in respect of his shares, arising out of a certain freehold mill and premises.

It was objected that the shares in a company incorporated under the provisions of the Joint Stock Companies Acts did not confer upon the holder a right to vote in respect of the lands held by the corporation: and the revising barrister decided against the claim. We think he was right.

The Joint Stock Companies Act, 1856, 19 & 20 Vict. c. 47, s. 13, provides, that, upon the incorporation of the company being certified by the registrar, the shareholders "shall thereupon be a body corporate by the name prescribed in the memorandum of association, having a perpetual succession and a common seal, with power to hold lands, but with such pecuniary liability on the part of the shareholders as is hereinafter mentioned:" and by the 15th section of the same act it is enacted that "the shares so issued shall be personal estate, and shall not be of the nature of real estate."

It being thus provided that the lands shall be held by the corporation, and that the shares shall be personal property and not in the nature of real property, we are of opinion that a shareholder, as such, can have no freehold estate, legal or equitable, in any lands so held by the corporation, and that his rights are confined to a proportionate share in the profits of the company. This opinion, which seems to us so entirely consistent with the legal constitution of a corporation, and the distinction, between the corporate body and its individual members, is fully sustained by the authorities on the subject. In Bligh v. Brent, 2 Y. & C. 268,† it was clearly laid down, that, in a joint stock company incorporated by act of parliament, the shareholders are entitled to no

direct interest in the *land held by the corporation; that no part

*30] of the realty is held in trust for them; but that all they are entitled to, is, that the property held by the corporation shall be used to create profits, in which they have a right to participate rateably according to the number of their shares. This case was recognised, and the principle of its decision acted on, in Hilton v. Geraud, 1 De Gex & Smale 183, and has never been departed from in any of the subsequent

cases. The decisions upon the mortmain acts also proceed on similar principles: see Sparling v. Parker, 9 Beavan 450; and Walker v. Milne, 11 Beavan 507. 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 decision was acted on by Lord St. Leonards, and is reported in 2 De Gex, M'N. & G. 599. In Watson v. Spratley, 10 Exch. 222,† a question arose whether shares in a mine conducted by a joint stock company on the cost book principle were an interest in land within the 4th section of the Statute of Frauds; and, although the court was divided as to whether the opinion of the jury should have been taken upon the facts of the case, yet all the judges agreed that the distinction above stated between the corporation and its members, in a joint stock company incorporated by act of parliament, in respect of lands held by the corporation, was well established. We were pressed during the argument by the case of Baxter v. Brown, 7 M. & G. 198 (E. C. L. R. vol. 49) (nom. Baxter v. Newman, 8 Scott N. R. 1019, 1 Lutw. Reg. Cas. 287). There, partnership property, including lands, was conveyed to the use of trustees, and the deed of partnership provided that they "should stand seised and possessed thereof and interested therein upon trust for the benefit of themselves and their partners in the said joint concern as *part of their part

nership joint stock in trade." There would be little doubt, that, [*31

under such a conveyance, the partners who were not trustees would still take an equitable interest in the lands of the partnership: but it was insisted, that, as it was provided by the deed that the property, including lands, "should be deemed and considered as or in the nature of personal estate, and not real estate," the partners had not such an equitable interest as entitled them to vote under any of the statutes which confer the franchise. This court, however, held that they were so entitled, notwithstanding the clause in the partnership deed above referred to, which, as a voluntary agreement by the partners inter se, might regulate the mode of enjoyment, but could not change the nature and quality of their estates. The Lord Chief Justice, however, in giving judgment, carefully distinguishes that case from one in which a company is incorporated by act of parliament, with a statutory declaration that the shares shall be deemed personalty, and not in the nature of real estate; in which latter case there could be no freehold interest in the several shareholders, so as to entitle them to vote.

The resolution of the House of Commons in 1624, which was cited in argument before us, could not of course deprive a party of any right of voting conferred by statute: but in this case it seems, so far as it applied to corporations aggregate, to have been a sound declaration of the law upon the subject: and the fact that members of such corporations have not been in the habit of voting in respect of lands held by the corporate body, is strong to show that the opinion we now distinctly express is that which has long been entertained.

The judgment of the revising barrister will be affirmed.

Judgment affirmed.