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Ir is to be hoped that the comparatively recent decision_of_Mr. Justice Parker in Re Crunden and Meux's Contract (100 L. T. Rep. 472; (1909) 1 Ch. 690) will have settled the law as to who is the proper person to execute a trust for sale after the death of the last trustee named in the instrument creating the trust that is to say, whether it can be executed by the personal representative of such trustee, or only by new trustees duly appointed. As long ago as Cooke v. Crawford (13 Sim. 91), where a testator devised his real estate to A., B., and C. in trust that they or the survivors or survivor or the heirs of the survivor should sell the same, and he empowered them and their heirs to make contracts with and conveyances to the purchasers, and declared that the receipts of them or the survivors or survivor of them or the heirs, executors, or administrators of such survivor should be good discharges to the purchasers, and directed that they, their heirs, administratore, and assigns should hold the proceeds of the sale upon certain trusts, and A. and B. disclaimed and C. alone acted and devised the estates to M. and N. on the trusts affecting the same, it was held that M. and N. were not entitled to execute the trust for sale, as they were the devisees and not the heirs of C That case, however, was held by Jessel, M. R. in Osborne to Roulett (42 L. T. Rep. 650; 13 Ch. Div. 774) to be overruled. In Osborne to Rowlett real estate was devised to trustees and their heirs (omitting assigns') in trust for sale, and it was decided that the trust could be executed by the devisees of trust estates of the surviving trustee. In the course of a long and learned judgment, in which all the authorities seem to have been reviewed, Jessel, M. R. said: "The true view appears to me to be this: that the person to execute the trust for sale is the person who takes the estate not by accident, so to speak, but in ccordance with the provisions of the will. There is a trust annexed to the estate, and when we find who is the person who takes the estate under the will then we find who is the person to execute the trust." It will be seen, however, that this principle has been doubted. In Re Morton and Hallett (15 Ch. Div. 143) Jessel, M. R. said: "I have commented very recently in Osborne to Rowlett on the power of the devisee of the trust estate to sell, and I thought he could do so; but since Cooke v. Crawford was decided no one has taken a title from such a devisee, but it has always been taken from the heir of the surviving trustee." In Re Morton and Hallett there was a devise to trustees and their heirs upon trust that they the said trustees or the trustees or trustee for the time being of the will should sell the estates, and the testator empowered the trustees or trustee to give receipts. Jessel, M. R. analysed the will, and held that on its true construction the heirs were pointed out as capable of executing the trust. That decision was affirmed on appeal, and Lord Justice James in the course of his judgment said: "I agree with the Master of the Rolls that if an estate is given to A. and B. and their heirs on trust to sell, the heir of the survivor of A. and B. is a trustee under the will, takes the estate on trust for sale, and can sell it. Whether the court at the instance of the cestuis que trust would appoint another trustee in his place, on the ground that he is not a person in whom the testator reposed personal confidence, is an entirely different question which we need not now consider." Both Lords Justices James and Baggallay expressed doubts whether Cooke v. Crawford could be considered as overruled. In Re Ingleby and Boak and Norwich Union Insurance Company (13 L. Rep. Ir. 326) the facts, were shortly as follows: The testatrix appointed A. and B. executors and trustees of her wil', and devised certain specified properties and all other estates or interests belonging to her in Ireland to and to the use of A. and B. upon trust for sale of euch parts thereof as might in their judgment be necessary for the discharge of debts and legacice, and as to the remainder thereof in trust that they or the survivors or survivor of them should receive the rents and pay them to A. for life, and after his death sell the same and divide the proceeds among her nieces, and it was held that the legal personal representatives of the surviving trustee, which representatives had only the powers of the heir transferred to them by sect. 30 of the Conveyancing Act 1881, were in no better position than the heir would have been, and could not execute the trust (and see Mortimer v. Ireland, 11 Jur. 721). But if the devise is to A. and B. and their heirs on trust or with power to sell, then under sect. 30 the personal representative of the survivor can fell (see Re Pixton and Tong's Contract (1897) W. N. 178). In Re Waidanis; Rivers v. Waidanis (97 L. T. Rep. 707; (1908) 1 Ch. 123), W. by will devised and bequeathed certain real and personal estate to the person or persons who shou'd at the time of her decease be trustees of her father's will. At her death in 1908 all the trustees of her father's will and all the trustees appointed in their place were dead. The executors of the last surviving trustee so appointed had acted in the trusts of her father's will. It appears from the judg ment that by the will of the father his real estate was devised to trustees therein named, their heirs and assigns, and it was held by Mr. Justice Swinfen Eady that the executors of the last survivor of the trustees appointed of the father's will were at the death of the testatrix trustees of her father's will, and were duly appointed trustees of her own. Mr. Justice Parker in Re Crunden and Meux's Contract thought that the decision in Re Waidanis turned on the mention of the words heirs and assigns" in the father's will. In Re Crunden and Meux's Contract the facts were shortly as follows: T. C.. who died in 1883, devised his residuary estate to A., B., C., and D., without words of limitation, upon trust during the lifetime of A. with her written consent and afterwards at the discretion of the trustees to eel the same in such manner as his trustees might think fit, and with as full powers as if they were absolute owners, and after payment of his debts, funeral and testamentary expenses, and legacies to stand possessed of the proceeds upon the trusts therein mentioned. The will gave the trustees power to postpone the sale and to let and manage Second Sheet.
during postponement, and enabled the number of trustees to ba reduced, but not below two. D.. the surviving trustee, died, having appointed executors. It was held by Mr. Justice Parker in a very lucid and concise judgment, in which he referred to the foregoing authorities, that D.'s executors could not make a good title to a freehold house forming part of the residuary estate of T. C., as they were not persons, or having the powers of persons, pointed out by the creator of the trust as persons to exercise it. As pointed out by the learned judge, all of the authorities, with the possible exception of Osborne to Rowlett, seem to proceed on that principle, and not on the princip'e that the power or trust is annexed to the ownership of the land. Of course, if in the case of Crunden and Meux's Contract the heir of the last surviving trustee had been named in the will, he could have exercised the powere, and, by virtue of sect. 30 of the said Ao', the legal personal representatives would be substituted for the heir.
In Appeal Court II. judgment will be delivered in Central London Railway Company v. Commissioners for Land T'ar for the City of London on Monday next at 10.30. The following Lunacy matter will be in the paper after the above judgment: Re Steel's settlement and Rev. Jish Ponsoby Seel, a person of unsound mind, not so found by inquisition. The Revenue appeals will be continued on and after Monday next. following are the next to be taken: Nos. 31, 63, 65, 6), 83.
In the King's Bench Division no further jury actions other than Commercial cases ordered to be tried by a special jury and the common jury case of Howie v. Macpherson will be taken during the present sittinge.
Judgment will be delivered by Mr. Justice Warrington to day (Saturday), at 10.30, in Stirling v. Burdett.
Mr. Justice Bray and Mr. Justice Bankes opened the commission at Swansea, on the South Wales Circuit, last Saturday afternoon. When the business at this town is finished they will return to London and remain until the end of the present sittings.
Mr. Justice Ridley and Mr. Justice Bucknill opened the commission at Birmingham, on the Oxford and Midland Circuit, last Monday. When the business at this town is finished they will return to London and remain until the commencement of the Long Vacation.
Mr. Justice Phillimore opened the commission at Guildford, on the second part of the South-Eastern Circuit, last Tuesday. When the business at this town is finished he will return to London, where he will remain until the end of the present sittings.
Mr. Justice Grantham and Mr. Justice Scrutton opened the commission at Leeds, on the North-Eastern Circuit, last Tuesday. When the business at this town is finished they will return to London, where they will remain until the end of the present sittings.
On Tuesday last Mr. Justice Horridge and Mr. Justice Lush opened the commission at Manchester, being the last town on the Northern Crcuit. There is a very slight possibility of these judges returning to London before of the Long Vacation.
The Lord Chief Justice will go the Western Circuit at the ensuing autuma assizes, and will go to all the towns alone, excepting Bristol, where he will be joined by Mr. Justice Bray. The commission days have not yet been fixed.
Mr. Justice Channell will go the North and South Wales Circuit at the ensuing autumn assizes, and will go to all the towns alone until Swansea is reached, when he will be joined by Mr. Justice Bray.
Mr. Justice Lawrance having finished the business at Stafford, on the Oxford Circuit, on the 15th inst., returned to town and took his sest in court on the 17th inst., proceeding with the short cause list. He will now remain in London until the end of the present sittings. There are now eleven judges of the King's Bench away on circuit -viz, Mr. Justice Phillimore, Mr. Justice Grantham, Mr. Justice Scrutton, Mr. Justice Ridley, Mr. Justice Bucknill, Mr. Justice Channell, Mr. Justice Coleridge, Mr. Justice Bray, Mr. Justice Bankee, Mr. Justice Horridge, and Mr. Justice Lush. Out of this number, M. Justice Phill.more is the only judge expected to return to London next week.
The judges of the Supreme Court will rise for the Long Vacation on Monday, the 31st inst., after which the courts will be closed, excepting for Vacation business, until Thursday, the 12th Oct., when the Michaelmas Sittings begin. Mr. Justice Lush will act as Vacation judge for the first half, and Mr. Justice Horridge will act as Vacation judge for the second part of the Vacation.
The second July sitting at the Mayor's Court will commence on Monday next, the 24th inst, at eleven o'clock.
The July adjourned Quarter and General Sessions for cases arising on the north and south sides of the Thames will commence on Tuesday next, the 25th inst, at the Session 3-house, Newington, at 10 30.
An intermediate session for cases arising in the county of Middlesex will commence on Wednesday, the 2nd prox., at the Caxton Hall, Westminster, at ten o'clock.
The Temple Church will close for the Long Vacation after Divine service on Sunday week, the 30th inst.
The committee for the memorial to the late Lord Justice Fitz. Gibbon has intrusted the commission for the execution of the marble statue for St. Patrick's Cathedral to Mr. A. Bruce Joy.
Mr. John Meir Astbury, K.C., underwent an operation for appendicitis on Wednesday morning last. The operation was successful, and the learned counsel is progressing favourably.
With a view to the greater convenience of members, the Honourable Society of Lincoln's-inn has decided that in future its library shall be closed for cleaning during the last ten days in August instead of the first ten days in September as hitherto.
So intense was the heat on the 13th inst. that the coroner for North Shropshire held an inquest out of doors at Tibberton, near Newport, the jurymen listened to the evidence while they were seated in the shade by the side of a river.
A cricket match between the Bar and Barristers' Clerks, in aid of the funds of the Legal Musical Society, will be played on Saturday next, the 22nd inst., at the Oval, Kennington (by kind permission of the Surrey County Cricket Club), commencing at eleven o'clock.
Notice is given that in the Order in Council regarding the circuits of the judges, the words "Civil and Criminal" should have been inserted under the words "Liverpool (2)," "Manchester (2)," and "Birmingham (2)," in that part of the schedule which deals with the Autumn Circuit.
Sir Ryland Adkins, the new Recorder of Nottingham, was born in 1862, and was educated at Mill Hill School, University College, London, and Balliol. He is vice chairman of the Northamptonshire County Council, a county with which he is connected both by birth and by marriage. He was one of the recipients of knighthoods on the occasion of the Coronation.
Mr. Pickersgill, the new metropolitan police magistrate, was born in 1850, the son of Mr. T. Pickersgill, architect, of York. He was educated at London University (B.A. 1872), and was formerly in the Civil Service. He was called by the Inner Temple in 1884, and has represented South West Bethnal Green for many years in the Liberal interest.
Mr. Cluer, who is appointed to the late Judge Bacon's circuit at Bloomsbury and Whitechapel, was born in 1852. An exhibitioner of Balliol, he obtained first classes in the Classical schools, and took his degree in 1876. He was called by Lincoln's-inn in 1877. and was appointed a metropolitan police magistrate at the South-Western Court in 1895, and was transferred to Worship-street (now Old-street) in 1896. He was appointed Recorder of Deal in 1894. He has the reputation of being a thoroughly sound lawyer.
Speaking at the annual meeting of the Yorkshire Board of Legal Studies held at Hull, Judge Dodd said there ought to be courts in all the larger cities capable of trying all the commercial business which arose in those centres. The first thing to be considered was the public benefit. Local trials should be encouraged. It was unwise to drive everything to London. They should improve their courts, give them wider jurisdiction, and allow appeals both in law and in fact.
At the Acton Police-court on Monday, after the Bench had given their decision in a betting case, a solicitor appeared in court and apologised for being late. He stated that he had a number of witnesses to call for the defence. The chairman (Mr. Kemp) said the case could not be reopened. The eolicitor thereupon intimated that he intended to take the case to the High Court on a point of law, as the defence had not been able to call its witnesses. The Bench then fixed bail for the prisoner pending the hearing of the point of law.
At the rising of the Old-street Police-court on Wednesday, Mr. Madgett, solicitor, expressed the regret felt by solicitors who had business relations with the court at Mr. Cluer's impending transfer to the County Courts. He assured the magistrate that none appreciated better than solicitors his acute legal perception and the pains he took in solving knotty and intricate points of law, benefiting thereby both the people brought before the court and the advocates themselves. He congratulated the magistrate on his new appointment, and said the County Courts had gained a judge who by his keen insight into human nature, especially that of the surrounding distric s, and his strictly impartial decisions would reflect the utmost credit on them.
The Court of Aldermen on Tuesday decided to make certain gratuities, amounting in all to £57 odd, to two superintendents and four iuspectors of the City Police in respect of their exertions and services at the Coronation Processions. Sir Alfred Newton, chairman of the Police Committee, took occasion to say that certain sensational statements, alleging that discontent prevailed among the rank and file of the City Police over the allowance of three days' pay awarded them for their extra services, were without foundation and utterly misleading. On the contrary, the force were eminently satisfied with this recognition of their laboure, and no discontent whatever existed.
The Bill to enable local authorities to borrow money temporarily to tide them over the difficulties during the period between the levying of a rate and its collection was considered on the 14th inst. by the council of the Association of Municipal Corporations. The Law Committee of the association, consisting of some of the best town clerks in the country, are by no means satisfied that such power is not already in the hands of local authorities, but the law on the subject, it is admitted, is vague, and it is thought desirable to obtain a declaration by Parliament. Hence the council expressed its approval of the Bill introduced by Mr. Harmood-Banner. There is an excellent precedent for such legislation in the Burgh Police (Scotland) Act 1903, which confers powers of a similar kind on Scottish Town Councils. Mr. Burns is understood to be sympathetic to the proposal.
A return is published showing the receipts and expenditure in respect of the High Court of Justice, the Court of Appeal, and the Court of Criminal Appeal during the year ended the 31st March 1911. The receipts for that pericd total £481,433 16s. 8d. against £489,466 98. for the previous year, or a decrease of £8032 123. 4d. The expenditure for the past year totals £684,192 53., against £649,624 93. 2d. for the twelve months ended the 31st March 1910, a net increase of £34,567 153. 10d. In this connection it is pointed out that the separate expenses of the Court of Criminal Appeal are this year included in the return for the first time.
The annual match between the House of Commons and the Bar Golfing Society took place on the 15th inst. on the Woking Club's course. Last year the House of Commons won by 9 games to 3, but on this occasion the Bar secured the singles by 5 to 3, and the foursomes, in which each game counted 2 points, by 8 to nothing. The Bir thus proved successful on the day by_13_to_3. In the leading single Mr. H. W. Beveridge beat Mr. H. W. Forster, M.P. Mr. Alfred Lyttelton, M.P., and Mr. J. A. Pease, M.P., were among the representatives of the House of Commons. Mr. Lyttelton lost to Sir Thomas Parkyns, bat Mr. Pease defeated Mr. T. A. White.
At the conclusion of an assessment appeal heard before Mr. Loveland Loveland, K.C., the deputy-chairman, and other magistrates at the London Sessions on Wednesday, Mr. Balfour Browne, K.C., addressing the deputy-chairman, referred to the announcement recently published in the Press that his Lordship was about to retire. He said that he and his colleagues at the Bar felt that his Lordship's retirement would mean a great loss to the Bench. In congratulating him on having held his high position for so many years he expressed the hope, on behalf of the Bar, that he would long enjoy his retirement. Mr. Loveland Loveland thanked Mr. Balfour Browne and the other members of the Bar for their kind wishes, and said he looked back with great pleasure to the fact that his relations with his colleagues on the Bench and the members of the Bar had always been of the happiest description. But, having arrived at the age of seventy, he thought it right to tender his resignation, so that he might take rest and enjoy the repose of a country life. The retiring judge received his appointment fifteen years ago, though for five years before he had served as occasional judge at the sessions. He was called by the Inner Temple on the 17th Nov. 1865, and for many years went the Oxford Circuit.
At the Westminster County Court on the 17th inst., before His Honour Judge Woodfall, Mr. George Bartlett, a solicitor, practising at Chichester, sued Mr. Horace Boot, consulting engineer, of Westminster-chambers, Victoria-street, for £21 as a fee which he claimed was due to him for introducing the defendant to members of the Chichester City Council in connection with a scheme for installing the electric light in the city. Mr. Gatehouse, for the plaintiff, said that his client was a well-known public man in Chichester, and was a member of the council there for some years. Early in 1900 the council obtained a Provisional Order for an electric light scheme, and desired to transfer it to a company. The defendant, who had known the plaintiff for some years, suggested that the plaintiff should introduce him to the chairman of the Electric Lighting Committee of the council, in the event of which he thought he would be able to bring about the desired transfer. The introduction was made, and the negotiations which followed led to the transference of the Provisional Order to a company, His Honour, in giving judgment, said there was not an iota of evidence to prove that there was an agreement to pay money, and in these circumstances there must be judgment for the defendant with costs.
Lord Rendlesham, who has, owing to blood poisoning, undergone the amputation of his hand, was when a very young man a party in the last stages of a litigation which has made his family name-Thellusson -well known in legal history, and has even given its designation to a statute known as the Thellusson Act (39 & 40 Geo. 3, c. 98), by which a restriction is imposed on attempts to accumulate the income of property for the benefit of future generations. Mr. Peter Thellusson, the great-grandfather of Lord Rendlesham, and the founder of his family, made an extraordinary will by which he directed the income of his property to be accumulated during the lives of all his children, grandchildren, and great grandchildren who were living at the time of his death for the benefit of some future descendants to be
living at the decease of the survivor, thus keeping strictly within the rule which allowed any number of existing lives to be taken as the period for an executory interest. To prevent the repetition of such a cruel absurdity, the Thellusson Act forbids the accumulation of income for any longer term than the life of the grantor, settlor, devisor, or testator, or during the minority of any person who under the settlement or will would for the time being, if of full age, be entitled to the income so directed to be accumulated. At the time of Peter Thellusson's death, in July 1797, he had no great-grandchildren, and in consequence the trust was limited to the life of two generations. The family, to whom he left £100,000 out of a fortune estimated from £600,000 to £800,000, endeavoured to get the will set aside. In 1799 the will was pronounced to be valid by Lord Chancellor Loughborough, whose decision was confirmed by the House of Lords in 1805. As it was calculated that the accumulation might reach £170,000,000, the will was regarded by some as a peril to the community, and the Thellusson Act was passed prohibiting similar schemes of bequest. A second lawsuit arose as to the persons entitled when Peter Thellusson's last grandson died in 1856. The estate was divided between the two great-grandsons, of whom the present Lord Rendlesham is one, by the judgment of the House of Lords on the 9th June 1859. In consequence of mismanagement and litigation they succeeded only to a comparatively moderate fortune.
The Lord Mayor (Alderman Sir T. Vezey Strong) opened the July session at the Central Criminal Court on Tuesday, and was panied on the Bench by Alderman Sir H. Knight, Alderman Sir W, Vaughan Morgan, Alderman Sir C. Wakefield, the Recorder (Sir Forrest Fulton, K C.), the Common Serjeant (Sir F. A Bosanquet, K,C.), and Alderman Sir Charles Johnston (Sheriff). The fact that the business of the June session had not concluded was commented upon by the Recorder, in his charge to the grand jury, in connection wtth a proposal to hold the London Sessions at the Central Criminal Court. In the calendar were the names of fifty-seven prisoners for trial. The Recorder, in his charge to the grand jury, said as the interval since the commencement of the June session was only three weeks, the number of cases was not so large as usual. But he desired to point out that, although they had been sitting nearly every day for the past three weeks, and that during that time there had been as many as five courts, the June session was not yet completed, and it would be necessary for him on the following day to resume a trial which would probably occupy a further period of four or five days. How it would be possible for the court to cope with the business of the London Sessions, in addition to that which properly belongs to the jurisdiction of the court, as had been proposed in some quarters, he was quite unable to understand.
Sir Alexander Acland Hood, now Lord St. Audries, immediately after the announcement that a peerage had been conferred on him, accepted the stewardship of the Chiltern Hundreds and thus vacated his seat in the House of Commons. If a member of the House of Commons be created a peer, his seat is not vacated until the letters patent conferring the dignity have passed the Great Seal. When it is advisable to issue the writ without delay in the case of a member created a peer and it is doubtful whether the seat be legally vacated, the member accepts the Chiltern Hundreds before his patent be made out. On the 8th June 1893, Mr. Speaker Peel, in response to a question with reference to the sitting and voting in the House of Commons of a gentleman on whom, according to an authoritative announcement in the Press, a peerage had been conferred, thus enunciated the law on this subject: The mere announcement in the Press has nothing whatever to do with the qualification of an hon. member to sit and vote in this House. I say nothing as to what is the custom or etiquette, but the law which governs the whole proceeding is this: At what time the letters patent have passed the Great Seal that is the final termination of a member's existence as a member of this House. On the day itself, or as soon after as it issues, the Gazette states the fact that the letters patent have passed the Great Seal, and that is evidence of the fact that an hon. member has ceased to be a member of this House."
"A Judge "writes to the Times of Tuesday as follows:-" In your issue of the 13th July the Lord Chancellor is reported as having stated in the debate on the County Courts Bill that the judges of the County Courts sit on an average only 153 days in the year. On this point his Lordship has been misinformed. Whoever made the calculation seems to have omitted the days on which the judges sat by deputies and those on which they sat specially as arbitrators under the Workmen's Compensation Act and the sittings held by arbitrators appointed by the judges under that Act. All these sittings should be included in order to show the work of the judges, and the return for 1909 (for some reason that for 1910 has not yet been issued) shows that the total sittings in that year were: Judges, 8370 days; deputies, 306 days; judges sitting as arbitrators, forty-four days; sittings by arbitrators, twenty-five days; total, 8745 days. This total divided by fifty-five, the number of the judges, gives an average of 159 days instead of 153. In the same year the sittings on twenty-four circuits worked by twenty-six judges amounted to 4577, giving an average of 176 days, which compares favourably with that in the High Court, if the travelling required on many of the circuits and the average length of the sittings are taken into consideration. And it is on these circuits that the greatest increase of work is to be expected if enlarged jurisdiction is conferred on the courts as proposed by the Bill."
The centenary of William Makepeace Thackeray was celebrated on Tuesday by a garden party given by Lady Ritchie and Mr. Reginald J. Smith, K.C., in the garden and hall of the Middle Temple (by permission of the Master Treasurer and the Benchers of the Middle Temple). There was a concert in the Middle Temple Hall, under the direction of Dr. H. Walford Davies, by Mr. William Forington and the choristers and ex-choristers of the Temple Church. gramme included some of Thackeray's songs, while Mr. Cyril Maude read passages from Thackeray's works. Among the guests invited were The Master Treasurer and the Benchers of the Middle Temple, Countess von Arnim, Lord and Lady Avebury, Mr. Alfred Austin, Mrs. and Miss Asquith, Mr. Arthur Benson, Lord and Lady Burghclere, Mr. and Mrs. Sydney Buxton, Mr. and Mrs. Birrell, Mr. and Mrs. George Buckle, Mr. J. M. Barrie, Lord and Lady Brassey, General Sir Robert Baden-Powell, the Right Hon. Charles and Mrs. Booth, the Master of Trinity and Mrs. Butler, Sir Squire and Lady Bancroft, Mme. Belloc, Mr. and Mrs. Egerton Castle, Lord and Lady Robert Cecil, Lord and Lady Courtney of Penwith, Sir H. and Lady Craik, Mr. and the Hon. Mrs. Lionel Cust, Sir Sidney and Lady Colvin, Mrs. W. K. Clifford, Lord and Lady Coleridge, Sir Arthur and Lady Conan Doyle, Mr. Austin Dobson, Mrs. C. W. Earle, the Hon. Arthur Elliot, Lord Eversley, the Hon. John Fortescue, Sir Alfred and Lady Scott-Gatty, Mr. and Mrs. Anthony Hope Hawkins, Mr. and Mrs. Frederic Harrison, Mr. and Mrs. Thomas Hardy, Mr. and Mrs. Maurice Hewlett, Lord and Lady George Hamilton, Mr. and Mrs. Harcourt, Sir John and Lady Hare, Mr. and Mrs. Martin Harvey, Lord Haldane, the Dean
of St. Paul's and Mr. Inge. Sir Rufus and Lady Isaacs, Lord and
The sale in portions of the Duke of Bedford's estates at Tavistock, the neat little town. famous for its abbey church, on the borders of Dartmoor, recalls a fact not without interest to lawyers. It is presumably the cradle of the circuit system, for in his History of Legal Institutions (1902 edit., p. 63) Mr. A. T. Carter writes: "It is proper now to see how the royal justice was brought to the people. William I. Occasionally sent down somebody from his court to try an important case, and Rufus sent down to the west Bishop Walkelin and his chaplain Flambard and two others to hold royal pleas in Devonshire, Cornwall, and Exeter. The record says Ad investiganda regalia placita, but it is probable that the words regalia placita do not mean pleas of the Crown in our sense, but royal business generally; at any rate, the royal business of which we have a record was to hear a suit on behalf of the King for a certain manor which was held by the Abbot of Tavistock. Everything has a beginning, and the prac tice of sending judges into the country grew. Henry I. sent itinerants, for we have a record in the thirty-first year of his reign which exhibits a system of itinera in full working order." Henry, Mr. Carter adds, on the authority of the Saxon Chronicler, seems to have been rather active in the administration of justice, for in 1134, in Leicestershire, four-and-forty men were hanged and six men were deprived of their eyes and emasculated. Verily, as De Quincey observes of his own time, "in those days they hanged liberally.
The suspension from practice as a solicitor for twelve months of Mr. Newton, as a sequel to the Crippen trial, will recall two signal instances in which counsel for the defence in sensational criminal trials lost caste by their conduct at the Bar. In 1840 Mr. Charles Phillips, who, having made a great reputation at the Irish Bar, was called to the English Bar in 1821 and was the acknowledged head of the Old Bailey Bar, was counsel for Courvoisier, charged with the murder of his master, Lord William Russell, a crime of which he was convicted, sentenced to death, and executed. Phillips was accused of seeking to fasten the crime on another, and, while fully aware of his client's guilt, pledging his word that he was innocent. His conduct was a matter of fierce controversy, and his merits or demerits are always debated whenever the question of the moral responsibility of the advocate is subject of discussion. There is no doubt that the incident, whether he was or was not a blameworthy, cast the cloud over character of Phillips and barred his advancement to the great preferment of which he had previously been assured. Then, again, 1873 Dr. Kenealy, QC, as leading counsel for Orton, the Tichborne claimant, conducted the case in a manner which rendered it necessary to bring his conduct before the professional tribunals. He made groundless imputations against witnesses and against various Roman Catholic bodies, insulted the Bench, and mercilessly protracted the trial. The jury appended to their verdict a censure of the language he had employed. He was expelled from the mess of the Oxford Circuit, dispatented of his office of Queen's Counsel by the Lord Chancellor, and finally disbenched and disbarred by Gray'sinn in Aug. 1874.
NOTES OF RECENT DECISIONS NOT YET REPORTED.
BY OUR REPORTERS IN THE SEVERAL COURTS.
HOUSE OF LORDS.
Employer and Workman-Death by Accident-Compensation-Claim by Widow-Dependant-Question of Fact-Workmen's Compensation Act 1906 (6 Edw. 7, c. 58).-There is no presumption of law that a wife is wholly or partially dependent upon her husband's earnings. It is a question of fact in each case. Therefore where a wife had not cohabited with her husband for more than twenty years, on account of his ill-treatment, and had maintained herself during that period by her own exertions, and also her children, till they were able to earn their own living, without receiving auy assistance from him: Held, that there was no evidence that she was wholly or partially dependent on his earnings, and that she was not entitled to compensation under the Workmen's Compensation Act 1906 on his death by an accidert arising out cf and in the course of his employment. Judgment of the Court of Appeal (103 L. T. Rep. 622; (1911) 1 K. B. 250) reversed.
[New Monckton Collieries Limited v. Keeling. H. of L. July 18. -Counsel: J. Scott Fox, K. C. and T. E. Ellison; Atkin, K.C. and R. A. Shepherd. Solicitors: Bell. Brodrick, and Gray, for Parker, Rhodes, and Co., Rotherham; Corbin, Greener, and Cook, for Raly and Sons, Barnsley.]
Employer and Workman-Dispute-Claim by Employer for Damages for Breach of Contract-Wages due to Workman at Date of HearingProceedings in Court of summary Jurisdiction—" Subsisting Claims" -Jurisdiction of Court to adjust and set off-Employers and Workmen Act 1875 (38 & 39 Vict. c. 90), 8s. 3, 4.-The Employers and Workmen Act 1875 provides by sects. 3 and 4 that a court of summary jurisdiction in any proceeding in relation to any dispute between an employer and workman "may adjust and set off the one against the other all such claims on the part either of the employer or of the workman arising out of or incidental to the relation between them as the court may find to be subsisting, whether such claims are liquidated or unliquidated, and are for wages, damages, or otherwise." An employer took proceedings in a court of summary jurisdiction against a workman, claiming damages for breach of the contract of service, and also that the wages due to the workman should be ascertained, and the respective claims for damages and wages be adjusted and set off. At the date of the hearing wages were due to the workman, but were not payable until two days later. The workman did not put forward any claim for wages, and objected to an adjustment and stoff being made. The magistrate awarded damages to the employer, and, on his application, ordered the damages to be a ljusted and set off against the wages due, and the balance to be pud to the workman. Held, that the claim for damages and the claim for wages were "subsisting claims" within the meaning of the Act, and that the magistrate had jurisdiction to make the order. Juigment of the Court of Appeal (102 L. T. Rep. 898; (1910) 2 K. B. 445) affirmed.
[Keates v. Lewis Merthyr Consolidated Collieries. H cf L. July 17.-Counsel: Bailhache, KC., J. Sankey, K.C., and Clive Lawrence; Danckwerts, K.C. and Trevor Lewis. Solicitors: Smith, Rundell, and Dods, for Morgan, Bruce, Nicholas, and Jumes, Ponty. pridd; Bell, Brodrick, and Gray, for C. and W. Kenshole, Aberdare [. Fishery-Navigable non tidal Lake-Public User - Prescription.-No right can exist in the public to fish in the waters of an inland nont dil lake. Therefore, where the respondents showed a documentary title to a several fishery in the whole of a lake, and a user under the title in parts of the lake: Held, that their title was not displaced by evidence of long-continued fishing on the part of the public in such lake. Judgment of the Court of Appeal in Ireland 1909, 1 Ir. 237) affirmed, the Lord Chancellor, Lords Shaw and Robson dissenting.
[Johnston and others v. O'Neill and others. H. of L. July 14 Counsel J. Gordon, K.C, T. M. Healy, K.C., and J. P. Kerr; S. Ronan, K.C., W. M. Jellett, KC, and Gaussen, K.C. (all of the Irish Bar). Solicitors: Herbert Z. Deane, for L. A. Meenan, Dublin; Wansey, Stammers, and Co, for French and French, Dublin.] Fishery-Non-tidal River-Profit à prendre in alieno solo-Presumption of legal Origin-Right appurtenant.—The respondente, who were riparian owners, claimed an exclusive right of fishery in a non tidal river. The appellants claimed a right, as freeholders within a certain manor, to fish without stint in a portion of the river, and to sell the fish which they caught, and alleged that such right had been enjoyed by the freeholders from time immemorial. Held, that such a right was unknown to the law, and that the court could not presume a legal origin for such right, and therefore that the appellants had not the right which they claimed. Judg. ment of the Court of Appeal (99 L. T. Rep. 558; (1908) 2 Ch. 397) affirmed, the Lord Chancellor, Lord Ashbourne, and Lord Soaw dissenting.
[Harris and others v. Lord Chesterfield and another. H. of L. July 17-Counsel: Micklem, K.C.. L. Mossop, Lloyd, and Hickman; Upjohn, K.C., T. T. Methold, and stuart Moore. Solicitors: Meredith, Mills, and lark, 10r E. L. Wallis, Hereford; Taylor, Don, and Humbert, for Gwynne James and Son, Hereford ]
COURT OF APPEAL.
Gaming Money paid “in Respect of "a Gaming Contract-Guarantee of Overdraft at Bunk-Bankruptcy-Petition-Gaming Act 1892 (55 & 56 Vict. c. 9), 8. 1.-A. gave a guarantee to a bank to secure an overdraft for £500 on the account of B, knowing that B intended to use the money to pay bets he had already lost. A. afterwards paid the bank the money on his guarantee and recovered judgment against B. for the amount. Held, that the £500 was not money paid in respect of" a gaming contract and the transaction did not come within sect. I of the Gaming Act 1892, and therefore A, was ntitled to issue a bankruptcy petition in respect of it. Tatam v. Reeve (67 L. T. Rep. 683; (1893) 1 Q B. 41) and Saffery v. Mayer (83 L. T. Rep. 394; (1901) 1 Q. B. 11) distinguished. Ex parte Pyke (38 L. T. Rep. 923; 8 Ch. Div. 754) applied.
[Re O'Shea. Ct. of App.: Cozens Hardy, MR, Farwell and Kennedy, L.JJ. July 14-Counsel: Clayton, K.C. and Macklin ; G. Malcolm Hilbery. Sol.citors: Miller, Vardon, and Miller; Henry Hilbery and Son]
Hi band and Wife-Petition by Wife for judicial Separation-Supp'emental Petition by Wife for Divorce-Adultery and DesertionStatutory Period of Desertion not elapsed at Date of Petition.—Matri. monial Ciuses Act 1857 (20 & 21 Vict. c. 85), s. 27.-On the 12th July 1910 a wife presented a petition for judicial separation on the ground of her husband's adultery, no other matrimonial offence being alleged. On the 30th Jan. 1911 the wife presented what is called a supplemental petition, alleging that her husband had on the 12th Dec. 1908 without lawful cause wilfully deserte l ber, and had since that date neglected to provide for or maintain
her, and had never since returned to cohabitation with her, and that he was still living in adultery, and the petition prayed for a dissolution of marriage. The husband did not appear or defend the suit. At the hearing before Bargrave Deane, J. the adultery was proved and also the fact of desertion on the 12th Dec. 1908. The learned judge dismissed the petition, the petitioner having declined to take an order for judicial separation. The petitioner appealed. Held, that the decision of Bargrave Deane, J. was perfectly right; that there had not been desertion for two years as required by sect. 27 of the Matrimonial Causes Act 1857, the desertion having lasted for eighteen months only; that the presentation of the petition and its continuance on the files of the court prevented the subsequent desertion from being without excuse, as the wife was praying the court to require her husband to keep away; and that when the supplemental petition was filed there had not been desertion for two years without excuse. Kay v. Kay (91 L. T. Rep. 360; (1904) P. 382) and Harriman v. Harriman (100 L. T. Rep. 557; (1909) P. 123) applied. Appeal dismissed.
[Stevenson v. Stevenson. Ct. of App.: Cozens-Hardy, M.R., Farwell and Kennedy, L. JJ. July 3 and 15.- Counsel for the appellant, Frank Dodd. Solicitors for the appellant, Hammond and Beningfield.]
Practice-Costs-Deb'or who has received Notice that his Crediter has committed an available Act of Bankruptcy-Refusal to pay DebtAction by Creditor-Payment of Debt into Court-Creditor's Right to Costs of Action.-Appeal of the defendants from an order of Bucknill, J. made at chambers. The plaintiff brought this action to recover the sum of £298, being the balance due upon his current account with the defendants' bank. On the 24th Feb. 1911 there was a sum of £298 standing to the credit of the plaintiff's account at the defendants' bank. On that day the plaintiff's solicitor gave notice to the defendants that the plaintiff had on that day committed an act of bankruptcy. On the 29th March the plaintiff demanded payment of that sum of £298, but the defendants refused to pay upon the ground that they had notice of an available act of bankruptcy committed by the plaintiff. The plaintiff thereupon, on the same day, issued the writ in this action. On the 3d April the defendants issued a summons before a master for leave to pay the money into court, stating upon affidavit that they never claimed any interest in the sum of £298, but were advised that they could not safely pay it to the plaintiff because they were affected with notice of an act of bankruptcy. That application was heard on the 6th April, and an order was made that the defendants should be at liberty to pay into court the sum of £298, costs being reserved. On the 4th April the plaintiff issued & summons under Order XIV, which was adjourned by the master until the expiration of three months from the date of the act of bankruptcy. The adjourned summons was heard on the 13th June, when the master made an order that the sum of £298 should be paid out to the plaintiff, and that each party should pay their own costs of action, except the plaintiff's costs of the application to pay into court, which should be paid by the defendants. The defendants appealed, and Bucknill, J. dismissed their appeal. The defendants appealed, with leave. Held (allowing the appeal), that the defendants were entitled to an order that their costs should be paid by the plaintiff.
[McCarthy Capital and Counties Bank. Ct. of App.: Fletcher Moulton and Farwell, L JJ. July 14-Counsel: for the appellante, McCardie; for the respondent, Alan Macpherson Solicitors for the appellants, Cameron, Kemm, and Co.; for the respondent, Robbins and Co]
Tractice-Writ-Service-Indorsement of Service-Failure to indorse Date of Service within three Days-Default of Appearance-Irregularity which cannot be waived-Order IX., r. 15.-Appeal of the defendant from an order of Bucknill, J. made at chambers On the 14th Nov. 1910 the plaintiff issued a writ in the King's Bench Division against the plaintiff, indorsed with a claim for damages for assault. On the 23rd Nov. the plaintiff obtained an order for substituted service of the writ; and on the 24th Nov. the writ was served in a letter sent through the post to the defendant's club, as prescribed by the order. The defendant dil not enter an appearance, and the plaintiff signed judgment in default of appearance. The action was then remitted to the sheriff's court for the damages to be assessed. The defendant did not appear in the sheriff's court, and the damages were assessed at £1500. The person who had served the writ did not indorse thereon the date of service until the 30th Nov., more than three days after it had been served. Order IX, r. 3, provides: "The person serving a writ of summons shall, within three days at most after such Bervice, indorse on the writ the day of the month and week of the service thereof, otherwise the plaintiff shall not be at liberty, in case of non-appearance, to proceed by default; and every affidavit of service of such writ shall mention the day on which such indorsement was made. This rule shall apply to substituted as well as other service." The defendant applied to Bucknill, J. at chambers to set aside the judgment. The learned judge refused the application, and the defendant appealed. Held (allowing the appeal), that the non-compliance with the provisions of Order IX, r. 15, was an irregularity which could not be waived, and the judgment must be set aside.
[Hamp-Adams v. Hall. Ct. of App: Vaughan Williams and Buckley, L.JJ. July 8.-Counsel for the appellant, McCall, K.C. and E. G. Palmer; for the respondent, Mailinson. Solicitors: for the appellant, Adam Bura and Son; for the res ondert, Herbert J. C. Sump'er and Co]
Revenue-Stamp Duty-Increase of nominal Share Capital-Statement of Amount of Increase-Statutory Right to convert-Caledonian Railway (Conversion of Stock) Act 1890 (53 & 54 Vict. c. cxxxv ), 88. 2, 3 -Caledonian Railway Act 1898 (61 & 62 Vict. c. clxxxviii.), s. 37Caledonian Railway (General Powers) Act 1899 (62 & 63 Vict. c. ccxv.). 8. 65-Stamp Act 1891 (54 & 55 Vict. c. 39), s. 113.-By the Caledonian Railway (Conversion of Stock) Act 1890 any holder of ordinary stock might at any time by application in writing require the company to convert the whole or any part of such stock into preferred converted ordinary stock and deferred converted ordinary stock, and to issue to him an amount of preferred converted ordinary stock and of deferred converted ordinary stock each equal to the amount of ordinary stock so converted. By the Caledonian Railway Act 1898 the Caledonian Railway (Conversion of Stock) Act 1890 was to apply to all ordinary stock of the company created or issued under any Act already passed or to be hereafter passed. By the Caledonian Railway (General Powers) Act 1899 the company were authorised to raise £906,000 additional capital by the issue at their option of new ordinary shares or stock or new preference shares or stock. The company delivered the statement required by sect. 113 of the Stamp Act 1891 as to £906,000. But the Crown claimed that as that amount could, under the provisions of the company's private Acts, be converted into stock or shares of the nominal value of £1,812,000, the latter was the amount of nominal capital authorised, and that, consequently, stamp duty was payable on that amount. It was decided by Bray, J. (102 L. T. Rep. 358) that the sum of £1,812,000 was the increased amount of the nominal share capital authorised, within the meaning of sect. 113 of the Stamp Act 1891; and that therefore stamp duty was payable on that basis. The defendants appealed. Held, that the case came within the plain language of sect. 113 of the Stamp Act 1891; and that stamp duty was payable as claimed by the Crown. Ap eal dismissed.
[Attorney General v. Caledonian Railway Company. Ct. of App. : Cozens-Hardy, M.R., Farwell and Kennedy, L.JJ. July 18 and 19. -Counsel: for the appellants, Sir Alfred Cripps, K.C. and Sargant; for the Crown, Sir Rufus Isaacs (A..G.) and William Finlay. Solicitors: for the appellants, Grahames and Co., agents for Hugh Reid Buchanan, Glasgow; for the Crown, Sclicitor of Inland Revenue]
HIGH COURT OF JUSTICE-CHANCERY DIVISION. Ademption-Specific Legacy -Testator becoming Lunatic-Sale cf Legacy by the Court-Testator's partial Recovery-Lunacy Act 1890 (53 Vict. c. 5), 8. 123.-By his will, dated the 4th April 1910, C. P, after bequeathing certain legacies, gave to the defendant, G. W. M., all his motor cars, chassis, and their accessories, and expressed the hope, without imposing any trust, that G. W. M. would out of the profits of the motor business, which he anticipated G. W. M. would carry on upon certain freehold and leasehold premises which the testator devised to him, pay £100 a year to a specified charity. The testator gave the residue of his estate to G. W. M. on trust for the charity On the 14th May 1910 the testator became lunatic and was removed to a private asylum. By an order of a Master in Lunacy a receiver was subsequently authorised to sell the motor-cars, &c. On the 21st Sept. 1910 the receiver lodged in court £952 103, being the proceeds of sale of the motor-cars and accessories, to the credit of C. P., a person of unsound mind not so found by inquisition." The sum was invested in the purchase of India Three and a Half per Cent. Stock. The testator remained in the asylum until his death on the 5th Nov. 1910. Shortly before his death he recovered bis senses, but was ill with consumption and unfit to transact any business. This summons was taken out by C. T., one of the testator's executors, against G. W. M., who was the other executor, and Dr. Barnardo's Homes Association to determine whether G. W. M. was entitled to the India Stock, or whether the stock formed part of the testator's residuary estate. the question being whether the sale of the cars un ler the authority of a Master in Lunacy bad adeemed the specific bequest. Sect. 123 (1) of the Lunacy Act 1890 provides: The lunatic, his executors and legatees shall have the same interest in any moneys arising from any sale, mortgage, or other disposition under the powers of this Act which may not have been applied under such powers as he or they would have had in the property the subject of the sale, mortgage, or disposition, if no sale, mortgage, or disposition had been made. . . ." There had been no decision on the section since it was passed. For the charity it was contended that the sale of the cars was not a sale under the Lunacy Act, but under the prerogative power of the Crown, and therefore sect. 123 did not apply. Reference was made to Hartley v. Pendarves (85 LT. Rep. 64; (1901) 2 Ch. 498) and Pope on Lunacy, 1892 edit., p. 364. Further, the testator, though too ill to attend to business, recovered his faculties, and, as he did not die a lunatic, the section did not apply. Held, there was no evidence that the testator had intended to take the management of his affairs into his own hands again; the sale of the cars had been carried out under the Act of 1890, and sect. 123 applied; consequently there had been no ademption of the legacy.
[Re Palmer; Thomas v. Marsh. Ch. Div.: Neville, J. July 13. -Counsel: J. G. Wood; Jenkins, KC. and Wright Taylor; Cassel, K.C. and Arnold Herbert. Solicitors: Corbin, Greener, and Cook; Nisbet, Daw, and Nisbet.]
Building Society-Borrowing-Carrying on Banking Business-Ultra vires-Winding-up-Priorities of outside Creditors, Shareholders, and Depositors.-The B. P. B. Euilding Society was formed in 1851,
with the object, as defined by rula 2, of enabling its members to raise a fund out of which they might individually be enabled in accordance with subsequent rules to purchase or erect dwelling. houses or other real or leasehold estate in any part of Great Britain. By rule 35 the directors were empowered to borrow any sum either from their bankers or otherwise; and in case they should for this purpose give their own personal security, the directors should be indemnified in that respect by the society, and the trustees might, as security for the money borrowed, mortgage or deposit any of the securities, stocks, or other properties belonging to the society other than mortgages from its members. There were three classes of members of the society-namely, investing members, advance members, and depositors. In 1858 chequebooks were first issued to depositors. In 1873 a new class of shareholders was formed by converting fully paid up A shares into B shares entitled to share in profits. On the 20th June 1911 the society was ordered to be wound-up, and the official receiver was appointed liquidator. The securities of the society representing investments of deposits amounted to more than £7,000,000, and the liquidator obtained an order sanctioning the borrowing on the securities of about £4,000,000 80 88 to pay at once 108. in the pound to depositors. The claims of outside creditor amounted to about £5000. Questions having arisen 88 to priorities between the outside creditors, the depositore, and the various classes of shareholders, the official receiver took out a summons for the determination of the following questions: (1) Whether the outside creditors of the society were entitled to be paid out of the assets of the society in priority to the customers of the society on deposit or current banking accounts. (2) Whether the creditors of the society on deposit and (or) current banking accounts were entitled to be paid in full out of the assets of the Eociety before any payment or return was made to any holders of A and B shares in the society, whether fully paid or partly paid up. (3) Whether the holders of fully paid up A and B shares or the holders of partly paid up shares in the society were under any and what liability to contribute to the assets of the society so far as may be necessary for providing for the payment off in full of the customers of the society on deposits or current banking account and the other creditors of the society. (4) Whether the borrowers on mortgage from the society, being the advance members of the society. were in the same position as regarded their rights and liabilities as the holders of the fully or partly paid up A shares of the society. The learned judge said that he had provisionally arrived at the following conclusions: (1) That rule 35 was not ultra vires; (2) that the banking business carried on by the society was ultra vires; (3) that every depositor who deposited money on the deposit pass-books which had been put in evidence had notice of the illegality; (4) that the A and B shareholders were not liable to the claims of the depositors; (5) that the depositors were entitled to the assets that represented their deposits (6) that all the shareholders were bound to contribute to satisfy the claims of the outside creditors of the society. The summons stood over in order that the usual meetings of the shareholders might be held under the Companies Act to consider a scheme which had already been prepared, providing for the rateable distribution of the assets among all parties.
[Re Birkbeck Permanent Benefit Building Society. Neville, J. July 11 and 12-Counsel: Clauson, K.C. and C. W. Turner; Jenkins, K.C. and H. E. Wright; Hughes, K.C. and Tomlin; Jessel, K.C. and Seligman; P. O. Lawrence, K.C. and Galbraith; Younger, K.C. and A. W. Wells; Gore-Browne, K.C. and R. Vaughan Williams. Solicitors: Freshfields; Nunn, Popham, and Co.; Burton, Yeates, and Hart; Lewis and Yglesias; Ashurst, Morris, and Co.; Rubinstein, Nash, and Co.] Company-Reduction of Capital-Rights of Minority-Bona fidesCompanies (Consolidation) Act 1908 (8 Edw. 7, c. 69), 88. 46, 47, 50. -Petition for sanction to a scheme for reduction of capital. The B. and G. E. (1906) Company Limited was formed in 1906, and had a nominal capital of £200,000, of which 188,137 shares had been issued, and were now fully paid. The assets consisted mainly of mining claims in Rhodesia and in Idaho. The present scheme provided for the reduction of the nominal value of the shares from £1 to 53. each. The scheme provided for an issue of 164,411 new shares of 59. each, of which 105,000 would be underwritten. The special resolution for reduction had been passed by the requisite majority of the shareholders. A substantial minority of the shareholders opposed the petition, their counsel contending that there was no satisfactory evidence that the capital proposed to be written off had been lost or was unrepresented by available assets; the company had already £27,000 capital in hand, and were not justified, in order to raise a further £25,000, in writing off an enormous eum; and that this was not a case where the majority should be allowed to override a substantial minority, for the interests of the minority might suffer. The learned judge said that the court was bound to give effect to the wishes of the majority if their powers were properly exercised; it was for the shareholders to say what wise, provided it fair; the directors thought further capital was necessary, and they found this scheme was the only way to get it; they believed the assets stood in their books at a figure largely in excess of their present value; it was his duty to ascertain whether the scheme was bona fide and for the benefit of the majority of the shareholders; if there had been any evidence that the scheme was not for the benefit of the company and that the majority had agreed to fall in with it, not to benefit themselves as shareholders but for some