was good as to the residue, which was raised out of the personal estate. (f)

savoring of

Early decisions canal shares

respecting

[By the older authorities the act was held to] extend to every description of property savoring of the realty; as, the Property privilege by a grant from the crown of laying chains in realty. the river Thames for mooring ships; (g) canal shares; (h) and money secured by assignment of turnpike tolls, (i) or of the poor's rate and county rates. (k) [These authorities were followed in comparatively recent times by similar decisions regarding money secured by mortgage of the rates imposed on the occupiers of houses by improvement commissioners, (7) or by mortgage of railway, (m) harbor, (n) dock, (0) or canal, (p) tolls, all which are commonly called debentures. (q) All these were held within the plain words of the act, "charges or encumbrances affecting hereditaments."

and deben

tures.

settled that

But "the current of modern decisions is against the older cases, and while there is to be discovered an inclination formerly to carry the provisions of the act beyond the legislature, the tendency of modern decisions has been the other way." (r) And it is now shares in all joint stock companies or partnership, whether incorporated or not, (8) having power to hold land for stock compa trading purposes, (t) where such land is vested in the corporation or in individuals (as the case may be,) in trust only to use the

(f) Waite v. Webb. 6 Mad. 71. (g) Negus v. Coulter, Amb. 367.

(h) Howse v. Chapman, 4 Ves. 542; [Tomlinson v. Tomlinson, 9 Beav. 459.] (i) Knapp v. Williams, 4 Ves. 430, n.; [Ashton v. Lord Langdale, 4 De G. & S. 402.]

(k) Finch v. Squire, 10 Ves. 41.

[(1) Thornton v. Kempson, Kay 592; Chandler v. Howell, 4 Ch. D. 651; see also Howse v. Chapman, 4 Ves. 542 (where, however, the form of security is. not given); Toppin v. Lomas, 16 C. B. 159 (Westminster improvement bonds having the benefit of a general mortgage of lands); Cluff v. Cluff, 2 Ch. D. 222 (consol. stock of Metrop. Bd. of Works). (m) Ashton v. Lord Langdale, sup. (n) Ion v. Ashton, 28 Beav. 379. (0) Alexander v. Brame, 30 Beav. 153.

Shares in joint

nies not within the act.

(p) In re Langham's Trust, 10 Hare 446. (q) If the debenture was in form a bond or promissory note for money borrowed on the credit of the undertaking, but not by assignment of the tolls or of the undertaking, it was held not within the act, Myers v. Perigal, 16 Sim. 533; and per Wood, V. C., In re Langham's Trust, sup.; and Bunting v. Marriott, 19 Beav. 163 (Tothill Fields Improvement). (r) Per Lord St. Leonards, 2 D., M. & G. 619.

(8) As to companies or partnerships not incorporated, see Myers v. Perigal, 11 C. B. 90, 2 D., M. & G. 599; Watson v. Spratley, 10 Exch. 222 (case on the stat. of frauds); Hayter v. Tucker, 4 K. & J. 243; and the authorities cited in those

cases.

(t) See 10 and 11 Vict., c. 78.

land for the purpose of profit as part of the stock in trade, even though the undertaking be based entirely upon the holding of land, as in the cases of railway, dock, *market, gas, canal, mining, and land-jobbing companies, and also, of course, where the holding of land is only incidental to the business, as in the case of banking and assurance companies, are exempted from the operation of the act. (u) The exemption does not depend on the clause frequently inserted in acts and deeds of settlement declaring shares to be personal estate and transmissible as such, (x) nor on the nature of the business, (y) but on the nature of the individual shareholder's interest. "The true way to test it," said Lord St. Leonards, in Myers v. Perigal, (z) “would be to assume that there is real estate in the company vested in the proper persons under the provisions of the partnership deed. Could any of the partners enter upon the lands, or claim any portion of the real estate for his private purposes? Or, if there was a house upon the land, could any two or more of the members enter upon the occupation of such house? I apprehend they clearly could not; they would have no right to step upon the land; their whole interest in the property of the company is with reference to the shares bought, which represent their proportions of the profits. No encumbrancer of an individual member of the company would have any such right. In short, a member has no higher interest in the real estate of the company than that of an ordinary partner seeking his share of the profits, out of whatever property those profits might be found to have resulted." And the fact that by the dissolution of a company the shareholders may become specifically interested in the real property is to be considered as a remote event, and no more avoiding a bequest of a share to a charity than a like bequest of a simple contract debt would be

(u) Att.-Gen. v. Giles, 5 L. J. (N. S.) Ch. 44; Sparling v. Parker, 9 Beav. 450; Walker v. Milne, 11 Beav. 507; Thompson v. Thompson, 1 Coll. 381; Hilton v. Giraud, 1 De G. & S. 183; Ashton v. Lord Langdale, 4 De G. & S. 402; Myers v. Perigal, 16 Sim. 533; In re Langham's Trust, 10 Hare 446; Edwards v. Hall, 11 Hare 1, 6 D., M. & G. 74; Bennett v. Blair, 15 C. B. (N. S.) 518 (corn-exchange); Hayter v. Tucker, 4 K. & J. 243 (cost-book mine); Entwistle v. Davis, L. R., 4 Eq. 272 (land company); over

ruling Ware v. Cumberlege, 20 Beav. 503, and Glynn v. Morris, 27 Beav. 218. Shares in a railway company, whose line is leased to another company at a rent, are on the same footing, Linley v. Taylor, 1 Giff. 67, 2 D., F & J. 84.

(x) 10 Hare 449. A deed would of course be insufficient for the purpose, Baxter v. Brown, 7 M. & Gr. 216. Besides personalty, unless "pure," is within the act.

(y) Entwistle v. Davis, L. R., 4 Eq. 272, stated below.

(z) 2 D., M. & G. 620.

avoided, because it might ultimately become a judgment debt, and thus a charge upon realty. (a)

*This doctrine was fully adopted in Entwistle v. Davis, (b) where shares in land companies established, one for the purpose of buying, improving, letting and selling land, the other for raising by subscription a fund out of which every member should receive the amount or value of his share for the erecting or purchase of a dwelling-house, or other real or leasehold estate, (giving satisfactory mortgage security for the advance,) were held by Sir W. P. Wood not to be within the statute. In neither case could a shareholder claim any portion of the land which was held by the company for the purposes of its business.

If, in the case of the second company, an option had been given to every shareholder of taking a plot of land, the V. C. thought something might have been said. And if the land of a company or partnership be vested in any person in trust, not for the purposes of the undertaking generally, but for the individual shareholders or partners in proportion to their shares, then such shares are an interest in land within the meaning of the act Geo. II., for then the individual shareholder would have power to call upon the trustee, not merely for his share of the profits, but for part of the very land itself, which, in the cases previously considered, he could not do. (c)

bentures, &c.

Later deci

The current of decision regarding debentures has also been reversed. The course taken was this. It was held in Q. B. that a Railway demortgage by a railway company by assignment of the "undertaking" and tolls would not support ejectment sions. against the company. Coleridge, J., said it was a pure question of construction; that the word "undertaking" was ambiguous; it might possibly include the land; but if it did, the instrument gave the

(a) See 5 Beav. 442, 2 D., M. & G. 620, 7 Id. 525, 10 Exch. 222, 245, L. R., 4 Eq. 276. Whether shares of the nature now under consideration are goods and chattels within the bankrupt act, see Ex parte Vauxhall Bridge Company, 1 Gl. & J. 101, and In re Lancaster Canal Company, Dilworth's case, Mont. & Bli. 94. On the nature of shares as qualification for the county vote, see Baxter v. Brown, 7 M. & Gr. 198; Bulmer v. Norris, 9 C. B. (N. S.) 19. Shares in an incorporated company held not an interest in land within 4 of stat. of frauds, Bradley v.

Holdsworth, 3 M. & Wel. 422; nor within & 17, Duncuft v. Albrecht, 12 Sim. 189. So (as to ? 4) shares in a cost-book mine, Hayter v. Tucker, 4 K. & J. 243; Watson v. Spratley, 10 Exch. 222; Powell v. Jessop, 18 C. B. 337; Walker v. Bartlett, Id. 845. Shares in the Chelsea Waterworks Co. were held (before 1 Vict., c. 26,) to pass by unattested codicil, Bligh v. Brent, 2 Y. & C. 268.

(b) L. R., 4 Eq. 272.

(c) Per Wood, V. C., Hayter v. Tucker, 4 K. & J. 251.

mortgagee power, if he took possession, to put an end to the undertaking: which was a monstrous and improbable supposition. (d) This was followed by Turner and Cairns, L. JJ., who decided that all that the mortgagee could touch under such an instrument, was the profits of the undertaking; that the undertaking was made over to him as a going concern, and *plainly with a view to its continuance, and not so as to give him any power to break it up or interfere with its management. (e) The two decisions are perhaps not identical; the former being that the land did not pass, the latter that, if it did, it was only as an ingredient in a going concern. From these decisions, however, Attree v. Hawe. it was concluded in Attree v. Hawe, (f) that money secured by such debentures was not such a charge on within the act. hereditaments as was within the act: for the mortgagee having "no power to take the land, or enter on the land, or in any way to interfere with the ownership, possession, or dominion of the statutory owners and managers," the gift of money so secured to charitable uses was not within the mischief against which the act was directed: "the mischief, and the sole mischief," aimed at being, it was said, the making land inalienable.

Railway debentures not

Remarks on
Attree v. Hawe.

It will be remembered that Lord Hardwicke very distinctly denied that this was an accurate definition of the objects of the act. (g) It was an object mentioned in the title to the act: but only there, and the title was no part of the act. It will also be remembered that the mere absence of power "to take the land or to enter on the land" does not necessarily take a case out of the act. (h) However, the decision in Attree v. Hawe is convenient, and must be taken to have finally settled the law with regard to railway debentures: for although the subject of gift in that case was debenture stock, no distinction appears to have been intended or to be possible on that account; since the holder of such stock has by statute "all the rights and powers of a mortgagee of the undertaking," except the right to

(d) Doe d. Myatt v. St. Helen's Railway, 2 Q. B. 364.

discovery of a new and correct reading (of a statute) which has escaped the at

(e) Gardner v. London, Chatham and tention of eminent men in time past, will Dover Railway, L. R., 2 Ch. 201.

(f) 9 Ch. D. 337. See also In re Mitchell's Estate, 6 Ch. D. 655; Walker v. Milne, 11 Beav. 507.

(g) Att.-Gen. v. Lord Weymouth, Amb. 22. "That which a man fancies to be a

often, on more mature consideration, be found not to have been overlooked by them, but rejected for some sufficient reason." Per Lord St. Leonards, 1 D. & War. 326.

(h) Ante p. 221.

other compa

require payment of his principal. The principle of the decision is applicable to the debentures of all public bodies with par- Debentures of liamentary powers and duties to be exercised for the pub- nies. lic benefit, as harbor, dock, canal, and waterworks companies, (i) and public bodies constituted for the improvement of towns.

Growing crops, which pass under a devise of the land on *which they are growing, and clearly, therefore, savor of realty, are Growing crops. within the act. (1) But rent, when due, is in the nature Arrears of rent. of fruit fallen: it is severed from the land, and the right of distress is not an interest in land, but merely a right to enter and enforce payment of the debt by seizure of the chattels there found. Arrears of rent may, therefore, be bequeathed to a charity. (k) So Tenant's may tenant's fixtures, which, on the determination of his fixtures. lease, the testator might carry away with him.] ()

trust vitiates

the legal

estate.

Where lands are devised in trust for a charity, the trust not only is itself void, but vitiates the devise of the legal estate on Charitable which it is ingrafted; (m) and therefore, in such cases, the heir may recover at law; except where there are other trusts not charitable; (n) [or where the trust is secret, that is, where the devisee has verbally promised to hold in trust for a charity; (0) in either of which excepted cases the devise carries the estate to the trustee,] and the heir (p) must prosecute his claim in equity.

Where the conveying of land to a charity is enjoined as a condition subsequent, as where the devise is to A, on condition that he shall

(i) Holdsworth v. Davenport, 3 Ch. D. 185; Walker v. Milne, 11 Beav. 507. The cases of Ashton v. Lord Langdale, 4 DeG. & S. 402 (railway debentures), and Chandler v. Howell, 4 Ch. D. 651 (mortgage of "works," &c., by improvement commissioners), must be considered over

ruled.

710; [Pilkington v. Boughey, 12 Sim. 114; Cramp v. Playfoot, 4 K. & J. 479.]

(n) Willett v. Sandford, 1 Ves. 186; see also Doe v. Copestake, 6 East 328; Doe v. Pitcher, 6 Taunt. 359; [Arnold v. Chapman, 1 Ves. 108; Young v. Grove, 4 C. B. 668; Doe d. Chidgey v. Harris, 16 M. & Wels. 517; Wright v. Wilkin,

[(i) Symonds v. Marine Society, 2 Giff. 31 L. J., Q. B. 196. 325.

(k) Edwards v. Hall, 11 Hare 6, 6 D., M. & G. 74; Brook v. Badley, L. R., 4 Eq. 106 (a mining "rent"); Thomas v. Howell, L. R., 18 Eq. 203.

(1) Johnston v. Swann, 3 Mad. 467.] (m) Adlington v. Cann, 3 Atk. 155; Doe d. Burdett v. Wrighte, 2 B. & Ald.

(0) Sweeting v. Sweeting, 3 N. R. 240. As to secret trusts, post p. *233.]

(p) But if the devise were of particular lands in fee, and the will contained a residuary devise, the failure of the former would, under a will made since 1837, let in the residuary devisee, not the heir.