for the collateral purpose of giving a vote, which has no bearing upon or reference whatever to the objects of the deed of co-partnership, the right of the cestui que trust should not remain just as it would have been without such declaration of trusts. For, as to the declaration by the co-partners 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. This deed declares no trust whatever of the freehold; but, as it appears by the statement of the case that the land was purchased with the money of 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 1845. BAXTER, App. BROWN, 1845. BAXTER, App. BROWN, Resp. shareholder therein. And the estate, to use the language of Lord Eldon, in Crawshay v. Maule (a), when 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 (b) 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 arise. In the present case, the freehold is in the trustees for the benefit of the individual co-partners in 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 (a) 1 Swanst. 521. (b) 2 Yo. & Coll. 268. property." Such, was the case of The Vauxhall Bridge Company (a), and of The Lancaster Canal Company (b), and others; 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; think the shareholders had an equitable seisin (c) in a sufficient estate to enable them to vote for the county. we 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 (d), 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 (a) 1 Gl. & Jam. 101. (c) Antè, 48. Affirmed. 1845. BAXTER, 1844. Feb. 12. CASES ARGUED AND DETERMINED IN THE COURT OF COMMON PLEAS, IN Hilary Wacation, IN THE SEVENTH YEAR OF THE REIGN OF VICTORIA. The judges who sat in banco in this vacation were, By an inden- COVENANT. The declaration stated that, there ture between A. and B. of the first part, C. of the second part, tofore, to wit, on the 18th of March 1839, by a certain memorandum of an agreement indented then made between one Robert Arthur Fitzhardinge Kingscote the several persons whose names and seals were thereto affixed, as shareholders of a certain company then about to be formed, of the third part, and certain other persons of the fourth part ·reciting that A. and B. were possessed of a certain colliery, for the residue of a term of 42 years, with full powers for working &c., and had proposed to divide the colliery and works into eighteen shares of 40001. each, and that they had agreed to sell, and the several persons parties thereto of the third part had agreed respectively to purchase, so many of the shares respectively as were set opposite their respective names, amounting altogether to fifteen shares therein, at the said price, the other three eighteenth shares being 1844. MILLS บ. and Thomas Browne of the first part, Henry Kingscote of the second part, the several other persons whose names were thereunto subscribed and seals affixed, as shareholders of a certain company then about to be LADBROKE. formed, (and amongst others the plaintiff,) of the third part, the said Henry Kingscote, the plaintiff, and one - Murray of the fourth part, after reciting, amongst other things, that, under or by virtue of certain articles of agreement, bearing date the 2d of January 1837, made between Charles Molloy, for and on behalf of the Countess of Newburgh, of the one part, and the said T. Browne, on behalf of the said R. A. F. Kingscote and others, on the other part (a copy of which said articles of agreement was annexed to the said indenture), the said R. F. A. Kingscote and the said T. Browne were possessed of, or otherwise well entitled to, the collieries, coal-mines, and seams of coal, within and under the manor, land, and grounds of the said Countess of Newburgh at Amble, Hauxley, and Togston, in the parish of Warkworth, in the county of Northumberland, or elsewhere in the said parish, in the said articles of agreement stated to be computed to be upwards of 2000 acres in extent, but then ascertained to be upwards of 2600 acres in extent, for the residue of a certain term of forty-two years from the 1st of January 1837, with full powers for working the said coal mines, and rights of wayleave and erecting staiths or shipping-places, and other powers, licences, and authorities in the said ar retained by A. and B., and that each of the parties thereto of the third part had paid 10001. for each share each of them A. and B. severally covenanted with each of the parties thereto of the third part, their executors &c. (inter alia) that they would produce and shew a good title to the term, that they would effectually assign the same, and that they would, within a certain time, complete certain specified works. Held, that the covenant by A. and B. was a several covenant with each of the parties to the indenture of the third part, each covenantee having such a separate interest in the subject-matter of the covenant, as to enable him to sue alone upon the covenant. |