aforesaid" in various specified sums in favour of her children and in trust as to another sum of £6,000, which was described as "the residue of the said sum of £30,000" for another child. On her death the securities in which the £30,000 had been invested were worth £39,000, and Kekewich, J., held that as to the £9,000 there was no valid appointment, and that it passed as upon default of appointment. The Court of Appeal (Lindley, M.R., and Rigby, and Williams, L.JJ.) on the other hand, were of the opinion that the testatrix was dealing with the fund as an invested fund, and that the whole of it was appointed in the proportions indicated by her will, and the decision of Kekewich, J., was therefore reversed.

COMPANY-Director - FIDUCIARY CHARACTER CONTRACTS WITH COMPANYCOLLATERAL PROFITS MADE BY DIrector.

Costa Rica Ry. Co. v. Forwood (1900) I Ch. 756, was an action brought by the plaintiffs to recover profits made by a director out of a contract entered into by the company with another company of which the director was also a director. The articles of association of the plaintiff company provided that a director should vacate his office if he was concerned in, or participated in, the profits of any contract with the company without declaring the nature of his interest, but no director should vacate his office by reason of his being a member of any corporation, company or partnership which has entered into contract or done work for the company; or by reason of his being interested either in his individual capacity or as a member of any company, corporation, or partnership in any adventure or undertaking in which the company also have an interest; but the director was not to vote on contracts of this kind, and if he did his vote was not to be counted. The plaintiff company, of which Forwood was a director, entered into contracts with a steamship company for the carriage of bananas. Forwood was the largest shareholder in the steamship company, and was also a partner in the firm which managed it. No disclosure was made of Forwood's interest in the steamship company, either in the prospectus of the plaintiff company, or when the contracts were entered into. Profits were made by the steamship company out of the contracts with the plaintiffs in which Forwood participated. Forwood having died the action was brought against his representatives to make them account to the plaintiffs for these profits. Byrne, J., who tried the case, although of the opinion that on the

ordinary principles of equity, apart from the articles of association, the plaintiff company would be entitled to recover the profits made by Forwood on the contracts with the steamship company, yet considered that the articles of association prevented the application. of those principles, and that as the articles provided that a director should not vacate his office by reason of being interested as a member of a company in any adventure or undertaking in which the plaintiff company might also have an interest, he was of opinion the case was brought within the decision of Lord Hatherley in Imperial Mercantile Credit Association v. Coleman, L.R. 6 Ch. 558, and the plaintiffs were therefore not entitled to recover, and he dismissed the action.

WILL-CONSTRUCTION-" Die without CHILD OR CHILDREN"-EXECUTORY GIFT

OVER.

In re Booth, Pickard v. Booth (1900) 1 Ch. 768, Byrne, J., was called on in this case to construe a will of a testator whereby he devised one-half of his estate absolutely to the plaintiff, "but should she die without child or children" then over among the defendants. The plaintiff contended that the words "die without child or children" meant "die without ever having had a child or children," and that as she had now a child she was absolutely entitled. Byrne, J., however, agreed with the defendants that the words meant "without child or children living at her death," and he made a declaratory judgment declaring that the plaintiff is now absolutely entitled to one half of the estate in question subject to an executory gift over in favour of the defendants in the event of the plaintiff not having any child who should survive her or attain 21 in her lifetime. Why the latter clause was added is not stated; it seems to create an ambiguity in the declaration.

MORTGAGE MORTGAGE OF POLICY OF LIFE INSURANCE - COVENANT-PAYMENT TO MORTGAGEE BY INSURANCE COMPANY-REAL PROPERTY LIMITATION ACT, 1874, (37 & 38 VICT., C. 57) s. 8—(R.S.O. c. 133, S. 23).

In re Clifden, Annaly v. Agar—Ellis (1900) 1 Ch. 774 decides, per Byrne, J., an important point on the law of mortgages. In 1871 the defendant's testator executed a mortgage of certain reversionary interests, and also of a policy of life insurance. The mortgage contained the usual covenants for payment of principal and interest, with power of sale and surrender of the policy. The

mortgagor never made any payment of principal or interest. In 1893 the mortgagee surrendered the policy and received from the insurers £1468 14s. The mortgagor had no notice of the surrender. The mortgagee died in 1895, and the mortgagor in 1899. The question presented for decision was whether the representatives of the mortgagee were entitled to enforce the covenant in the mortgage against the representatives of the mortgagor, and the case turned on whether or not the payment of the surrender value of the policy in 1893 was a payment within the meaning of the Real Property Limitation Act, s. 8, (R.S.O. c. 133, s. 23). Byrne, J. decided that it was not and that the remedy on the covenant was barred. We may observe that in Ontario this section has been held not to apply to actions on the covenant for payment contained in a mortgage, but is held to apply only to actions to enforce the mortgage against the land itself: see Allan McTavish, 2 Ont. App. 278; Boice v. O'Lorane, 3 Ont. App. 167. In the circumstances of the present case the payment of the surrender value of the policy would probably be held not to keep alive the remedy on the covenant beyond 20 years, under R.S.O. c. 72: see Ib. s. 8. Byrne, J., succinctly sums up the result of the case thus: "It appears to me that when the statute has once run, and the twelve years have elapsed, the realization of the property by the morgagee after that date does not amount to and cannot be construed as a payment by the mortgagor or his agent, or by some person entitled by virtue of the contract to make a tender of the money to a person bound to accept it," which seems to apply both to payments under R.S.O. c. 133, s. 23, and R.S.O. c. 72, s. 8.

COSTS - DEBENTURE HOLDERS' ACTION.

In re Queen's Hotel (1900) 1 Ch. 792, decides, per Cozens-Hardy, J., that the action of a debenture holder of a company to realize his security, though it enures to the benefit of other debenture holders, is on the same footing as to costs as an ordinary mortgage action for foreclosure or sale, and that the plaintiff is not entitled to costs as between solicitor and client as against the other debenture holders who come in and get the benefit of the action, but only to party and party costs.

-

"ELDEST SON ENTITLED TO POSSESSION

SALE BY

WILL-CONSTRUCTION

ELDEST SON.

In Shuttleworth v. Murray (1900) 1 Ch. 795, the construction of a will was in question. By the will successive life estates in Blackacre were limited to the members of a class, other than and except an eldest or only son for the time being entitled to the possession or receipt of the rents of Whiteacre as tenant for life or a greater estate. A tenant in tail in remainder of Whiteacre joined with his father, who was tenant for life, in a sale of Whiteacre, of which he had the benefit, and the question was whether the son who had thus sold his interest in Whiteacre was nevertheless still to be regarded as coming within the exception in the will. CozensHardy, J., held that on the death of his father he became the eldest son within the meaning of the will and incapable of succeeding to a life estate in Blackacre: in the opinion of the learned judge the son in question having joined in the disentailing deed, under which he took benefits, must be treated as having had and enjoyed the

estate.

WILL-MORTGAGEE IN Possession-Demise of moRTGAGED PROPERTY-MORTGAGE DEBT IMPLIEDLY BEQUEATHED.

In re Carter, Dodds v. Pearson (1900) 1 Ch. 801, the short point decided by Cozens-Hardy, J., was that where a mortgagee in possession of the mortgaged property specifically devised the mortgaged premises in fee simple, the devisee was also entitled to the mortgage debt.

COMPANY-MEMORANDUM OF ASSOCIATION-STOCK SUBSCRIBED FOR BY ARTICLES OF ASSOCIATION - DOUBLE ALLOTMENT-COMPANIES' ACT, 1867 (30 & 31 VICT., C. 131) s. 25-(R.S.C. c. 119, ss. 5, 27—R.S.O. c. 191, S. 10).

In re Whitehead (1905) 1 Ch. 804, was an application by the representatives of a deceased shareholder in a joint stock company to compel the company to register a memorandum of a contract to take shares as fully paid up, and that it might be declared that such memorandum shall operate as a sufficient contract within the meaning of the Companies' Act, 1867, s. 25 (see R.S.C. c. 119, s. 27). The facts were, that the company was formed in 1870 for the purpose of acquiring a woolen mill from one Whitehead, and by agreement, recited in the articles between the company and Whitehead, it was agreed that the purchase money for the mill should be paid for by the issue of 1068 fully paid shares to Whitehead.

Whitehead signed the articles of association and agreed to accept 1068 shares, and the question now arose whether his estate was not liable to have these shares treated as not fully paid up, by reason of the fact that no contract had been filed previously to the issue of the shares. The difficulty was occasioned by the decision in Dalton Time Lock Co. v. Dalton, 66 L.T. 704, to the effect that the issue of the certificate of incorporation operated as an allotment of the shares subscribed for in the memorandum of association. Cozens-Hardy, J., made the order asked for, prefacing the order with a recital that the 1c68 shares referred to in the agreement were those for which he subscribed the memorandum of association.

POWER-JOINt donees-CONVEYANCE BY ONE DONEE AND PERSONS ENTITLED IN DEFAULT-ConcurreNCE OF OTHER donee-No referencE TO POWERIMPLIED Release.

In Foakes v. Jackson (1900) I Ch. 8Ɔ7, a husband and wife had a joint power of appointment over certain property, and subject thereto, the survivor had a separate power of appointment over the same property in favour of certain objects. The husband and wife and the persons entitled in default of appointment executed a deed whereby the wife (with her husband's concurrence) and those persons according to their several and respective estates and interests as beneficial owners, assigned the property to an object. The joint power was not referred to in this deed. The wife died, and the husband then executed a deed purporting to appoint the property in favour of other persons. Farwell, J., however, held that this latter appointment was inoperative, and that if the deed. of assignment executed by the wife, with the husband's concurrence, did not operate as a joint appointment, which he was inclined to think was the case, it nevertheless operated as a release of the husband's separate power, following Re Hancock (1896) 2 Ch. 173, 183 (noted ante vol. 32, p. 619).

EVIDENCE-STATUS AND BOUNDARIES OF FOREIGN STATE-JUDICIAL COGNIZANCE OF STATUS OF FOREIGN STATE.

In Foster v. Globe Venture (1900) I Ch. 811, two of the issues raised were, whether the tribes of Suss were independent, or were subjects of the Sultan of Moracco; and whether a tract of land between the Atlas Mountains and the River Pure was the territory of those tribes, or of the Sultan of Morocco. For the purpose of