Page:Harvard Law Review Volume 32.djvu/305

ACTIONS AGAINST THE PROPERTY OF SOVEREIGNS 269 stitutional use of property must be conclusively presumed to be public, but government ownership, apart from active use in the business of government, should not necessarily impute to prop- erty a public character. In the enforcement of judgments against municipal corporations a distinction is commonly made between property owned for profit and charged with no pubUc trusts or uses, which may be sold on execution; and property used for public purposes, such as hospitals, fire engines, waterworks, and the like, which is exempt from execution.^^ This distinction is applicable to cases against the property of sovereigns, and government use furnishes a more rational and less fortuitous test than government possession. The English Privy Coimcil has disregarded the rule laid down in The Davis}^ Young v, S. S. Scotia ^^ was a libel filed against a ship belonging to the Canadian goveriunent. It was argued that at the time of the libel the boat was still in the possession of the builders, but the Lord Chancellor said that the question of the possession of the Crown was immaterial. In an earlier case involving the property of a foreign sovereign the English Court of Appeals did not even notice the question of possession, Vavasseur v. Krupp ^^ was an action for infringement of patent rights, the plaintiff seeking an injunction to prevent the removal of certain shells owned by the Mikado of Japan and in the possession of commercial agents. The court refused to grant an injunction and James, L. J., refers to the plaintiff's action as "one of the boldest I have ever heard of as made in any Court in this country." The Massachusetts court has taken the same position. In Mason v. Intercolonial Railway,^ in an action by trustee process, trustees were summoned as having in their possession property of the defendant railway, which in turn belonged to the King of England. In holding there was no jurisdiction the opinion quoted from and relied on the leading cases of actions in rem against the property of a sovereign, " 3 Dillon, Municipal Corporations, 5 ed., § 992; 3 McQmLLEN, Municipal Corporations, §1160. " Supra. « [1903I A. C. 501. « 9 Ch. D. 351 (1877). " 197 Mass. 349 (1908),