It was contended that a person might register his own name under (e), and that other persons of the same name would be protected by the proviso clause (3). But clause (3) is a proviso to clause (2), and not to clause (1), which states what may be registered. It would, in my opinion, be wrong in law to construe section 10 of the Act of 1888 as allowing a person to register under (e)—i.e., in no particular or distinctive manner--any word which is the name of an individual within clause (a), and which under that clause must be "printed, impressed, or woven in some particular or distinctive manner." Such a construction would render the condition imposed by clause (a) nugatory. So far I agree with the judgment of North, J.

There remains, however, the real difficulty in this case, which is to determine whether the word Trilby is the name of an individual within clause (a) of section 10 of the Act of 1888. Clause (a) does not say that the name to be registered need be the name of a living person, nor the name of the applicant for registration. In this respect clause (u) differs from clause (b). The reference to a firm, how- | ever, points rather to real persons than to imaginary persons. In metaphorical language, an imaginary person may perhaps be called an individual," but such a use of the word is unusual, and to my mind rather fanciful. It is hardly to be supposed that the Legislature meant "individual" to be taken in a fanciful or metaphorical sense, or meant it to denote an imaginary person who has not, and never had, any real existence. I do not think that such words as Hamlet, Sam Weller, Jupiter, Venus, &c., can be called names of "individuals" within the meaning of clause (a) of section 10. Such names fall within (e) rather than (a). Trilby " is clearly a word within (e) unless it is the name of an individual" within (a), and I am not prepared to hold it to be within (a). The language of (e) is clear; that of (a) ambiguous as regards the names of persons who have not, and never had, a real existence. That which is clear ought to prevail over that which is doubtful. On this point, therefore, I am unable to agree with North, J. The practice of the office has been to allow the registration of names of imaginary persons, although such names are not "printed, impressed, or woven in any particular or distinctive manner." The view taken in the office has been that such names are "words" within clause (e) of section 10, and not names of "individuals" within clause (a).

COURT OF APPEAL.

out in the Somatose case, the Act of 1883, by letting in fancy words, was in some respects wider than the Act of 1888, which has left those words out and replaced them by invented words. All the court has to do, however, is to construe the words of section 10 of the Act of 1888, and of those sections of the Act of 1883 which have to be construed with it. The creation of monopolies in words was no doubt intended by the Legislature, but it is obvious, from section 10 of the Act of 1888, and from section 74 of the Act of 1883 (which relates to additions to trademarks), that whilst on the one hand the Legislature has permitted the acquisition of monopolies in many words for trade purposes, on the other hand it has placed restrictions on that acquisition, with a view, no doubt, to lessen the inconvenience which every monopoly produces. This double object must not be lost sight of. But, after all, the true construction of the Act must be the ultimate guide in every case, and the construction which North, J., has adopted is, I think, too far removed from the ordinary meaning of the words "name of an individual" to be sustained. The appeal must therefore in my opinion be allowed, with costs.

KAY, L.J.-The question on this appeal is whether "Trilby can be registered alone, as a trade-mark for ladies' gloves, aprons, and blouses. North, J., has held that it cannot. The question turns on the meaning of the Trade-Marks Act of 1888. That etatute altered the requirements of section 64 of the Act of 1883. Section 10 of the Act of 1888 provides that "a trade-mark must consist of or contain at least one of the following essential particulars." Then there are a number of sub-sections which deal with four subjects-(a) and (b) a name of an individual or firm, (c) a distinctive device, (d) an invented word (e) "a word or words baving no reference to the character or quality of the goods, and not being a geographical name." It is obvious that this last subsection is not intended to include the matters dealt with by the preceding sub-sections. "Word" in this last sub-section (e) does not mean name," or "invented word." These are provided for before. On any other construction the preceding sub-sections (a), (b), and (d), would be superfluous and unmeaning. The section is in this part of it an exact copy of section 64 of the Act of 1883, except that, instead of the words "fancy word or words not in common use," sub-sections (d) and (e) are substituted. No word, not being a name or a fancy word, could be registered alone under the Act of 1883. "Trilby" cannot be registered as a name alone, under (a) or (b), because it is not

printed, impressed, or woven in some particular and distinctive manner," nor is it the signature of the person applying to register. Nor could it be registered as an invented word" under sub-section (d). It For the reasons I have given I think this view and was not invented or first used by the person seeking the practice founded upon it are correct. No doubt to register it, which would seem to be necessary to the registration of such a name as Trilby "would obtain registration under sub-section (d). If “Trilby " give rise to troublesome questions if a person of that is not a name of an individual, I cannot see how it name should hereafter make his appearance and wish can be a "word" under sub-section (e). If it is a to carry on business under his own name or to register word and not a name, it must be an "invented word," his name printed in some distinctive manner under and that must be registered, if at all, under the preclause (a). Such questions would no doubt be avoided vious sub-section (d). It is none the less an inby deciding that such a name as "Trilby" could only vented word," because this applicant, not being the be registered under (a). Again, to hold that such a inventor, cannot register it under that sub-section. word as 66 Trilby" can be registered under (e) is open" Word" in sub-section (e) is contrasted with "into the objection that such a construction creates vented word" under sub-section (d). In sub-section monopolies in the use of a great number of common (e), "word" has its ordinary meaning, which, accordnames without imposing any condition whatever, and ing to the dictionaries, is "a part of speech "-the invites scrambles to obtain such monopolies. In this expression of a mental idea or conception. A meanrespect the Act of 1888 lets in words which were ingless collocation of letters is not a "word" in the excluded by the Act of 1883, by reason of their being ordinary sense. Sub-section (e), contrasted with subwords in common use. On the other hand, as pointed section (d), seems to me not to apply to anything

COURT OF APP. JAMES v. BUENA VENTURA NITRATE GROUNDS SYNDICATE (LIMITED).

COURT OF APP.

JAMES v. BUENA VENTURA NITRATE GROUNDS SYNDICATE (LIMITED). COURt of App. changed their offices prior to May, 1893, to 23, Leadenhall-street.

tion of the company, empowering it by special resolution to divide its capital by sub-division of its shares into shares of a smaller amount than that fixed by the company's memorandum of association. On the 21st of April, 1893, the following special resolution was duly passed, which was duly confirmed on the 11th of May, 1893:-"That the share capital of the company, which now consists of shares of £100, be sub-divided into shares of £10 each, and that each of the 100 existing fully paid-up shares of £100 be divided into ten fully paid-up shares of £10 each, and that each of the 50 existing shares of £100 each on which nothing has as yet been paid be divided into ten unpaid shares of £10 each, and that such last-mentioned shares be offered for allotment at par to the members of the company who, at the date of the confirmation of this resolution, shall be the registered holders of the fully paid-up shares of the company, and in the proportion of one unpaid share for every two fully paid-up shares, and that any shares which may not be capable of being so allotted, or which may not, within a time to be prescribed by the directors, be accepted by the members holding fully paid-up shares, be allotted to such persons in such manner and on such conditions as the directors may from time to time prescribe."

A good deal of argument was addressed to us on the question whether this resolution sanctioned a different allotment of the shares from that provided for by article 27, and, if so, whether it was competent by a special resolution to sanction a departure from the provisions of article 27 without having first by a special resolution duly altered that article. I am not satisfied that it would be competent for the company thus to act. It is unnecessary, however, to decide the point, as I do not think that the resolution of April, 1893, prescribes any different mode of allotment from that provided for by article 27. The words used in the resolution-"the members of the company who, at the date of the confirmation of this resolution shall be the registered holders of the fully paid-up shares of the company -appear to me aptly

On the 24th of May, 1893, a meeting of the directors of the defendant company was held, at which it was resolved to allot the shares applied for and to issue certificates to the allottees, and to defer the disposal of the shares unapplied for (being the proportion to which Mr. H. B. James, deceased, would have been entitled). Mr. James died on the 22nd of July, 1892. His will was proved on the 3rd of March, 1893. The probate was not produced to the secretary of the defendant company until December, 1894. The delay was due to accidental circumstances, for which no blame can be attributed to the plaintiff, the executrix. On the 21st of May, 1894, the solicitor for the plaintiff, having just before then ascertained that there had been the allotment of new shares referred to, applied for an allotment to her of the shares to which she was entitled. The proportion of the new shares claimed still remained unallotted, but the company refused to make any allotment to her; hence the present action.

Chitty, J., decided against the plaintiff on the ground that at the time the resolution of April, 1893, was passed, Mr. James, being dead, was no longer a member of the company. It is no doubt the fact that, strictly speaking, although Mr. James's name was still on the register, he was not, being dead, a member of the company. It seems to me, however, perfectly clear that the word " member," as used in some of the articles of the company, must be held to include those whose names are on the register, though they are no longer living. The article, for example, which in the case of this company is substituted for article 72 of Table A, authorizes the directors to distribute the profits of the company "between the members" by way of dividend. It cannot be doubted that they would be warranted in paying the proportionate share of the profits to the representative of a deceased member, although the word "member" only is used, and that such representative would be entitled to claim that dividend. For this purpose the deceased member must still be regarded as a member within the meaning of the article. In a somewhat similar case James, L.J., said. "the estate is the member." This is, of course, a metaphorical expression, but it sufficiently indicates the legal situation of the parties. Again, where a liability arises with respect to the shares-as, for example, where a call is made on the "members"-it seems equally free from doubt that the liability attaches to the estate of the deceased member, and must be discharged by his representative, even though, being deceased, he is no longer, strictly speaking, a member of the company. Other instances might be cited where the articles require this effect to be given to the use of the word " member," but those I have given will suffice. I can see no sufficient reason why the estate of a deceased member should be subject to the burdens of membership and should not have every pecuniary benefit accruing to the shares in respect of which he is registered.

to describe the members entitled to an offer of the shares under the resolution sanctioning the increase of capital, when read with article 27. The words cover the persons who were members at the time when the resolution for an increase of capital was passed, and any persons who at the time of its issue were the successors in title of such members. On the 21st of April, 1893, at a meeting of the directors of the company, the secretary was instructed to send a circular to the shareholders, asking them to state immediately, in anticipation of the resolution to divide the shares being confirmed at the meeting to be held on the 11th of May, whether they would wish to subscribe for the new shares which would be offered first to them, for the space of ten days-viz., till the 21st of May-and requesting them to state within that pericd if they wished to take the shares to which they were entitled, informing them at the same time that, if by the 21st of May they had not applied for the shares, the directors would proceed to allot them as they thought right. Accordingly, on the 11th of May, a circular letter to that effect was sent by the secretary to the members. It is to be taken as a fact that such a circular was sent addressed to "the executor of the late H. B. James, 23, Leadenhallstreet." It is denied that any such letter was received by, or came to the knowledge of, the plaintiff, and I think this also must be taken to be the fact. The registered address of Mr. James in the books of the defendant company was "9, Gracechurch-street." It appears that this was the address of the San Jorge Nitrate Co., who were in the habit of receiving letters for him, and that they had to remain open to the shareholders entitled to an

It is said that there may be a greater difficulty, where the benefit is of the nature of an offer to be made to the holder of shares, in making that offer to the legal representative of a member, than to the member himself. But, even if this be so, I do not think it is a sufficient reason for denying to the estate of a deceased member an advantage which is offered to all the other persons who are members of the company, whilst continuing to hold that estate liable to all the burdens attaching to the shares registered in his name. In the present case the offer of the shares was

JAMES v. BUENA VENTURA NITRATE GROUNDS SYNDICATE (LIMITED). COUrt of App.
of taking new shares, and as the option was a valuable
one all of them claimed their proportion of shares,
and on the 21th day of May, 1893, 450 out of 500
new £10 shares were allotted, and the fifty which
would have gone to Mr. James, if he had been alive,
were reserved, and had not been dealt with when
Mrs. James for the first time heard of the allotment
of new shares and applied for an allotment to her in
May, 1894.

COURT OF APP.
allotment for ten days, if they applied for an allot-
ment within that time. The notice conveying the
offer was not sent to the registered address of the
deceased member. Even if this would have been
sufficient, had better means of communication with
his representative been known, I am not satisfied that
it would have sufficed where, as in this case, the com-
pany had, prior to the date of the resolution, been in
communication with the solicitor of the executrix with
reference to other matters relating to the shares of
the deceased. It is not necessary to decide what
would have been the rights of the parties supposing
the company had sent by post a letter containing the
offer directed to the representative of the deceased at
his registered address, or directed to the place of
abode or business of such representative or her
solicitor, and, not having received an answer apply-
ing for the shares within the time limited, had pro-
ceeded to dispose of them otherwise.

In the present case the shares are still at their disposal, and I do not see that they have in any way acted to their prejudice on the assumption that the shares would not be applied for. For the reasons I have given I think the plaintiff was entitled to have the offer of shares, which was made to the members of the company, made to her also. As soon as she became aware of this right she elected to exercise it, and I think that, the shares not having been in any way disposed of by the directors, they were bound to allot them accordingly.

RIGBY, L.J., after stating the facts said :—It will be seen that this resolution (the resolution passed on the 21st of April and confirmed on the 11th of May, 1893) is in no sense a resolution sanctioning, within the meaning of article 27, the increase of capital, nor does it purport upon the face of it to alter article 27. This resolution, however, is not necessarily inconsistent with article 27. The registered holders of shares at the date of the confirmation of it must necessarily have been the same persons as, or successors in title of, the persons who were members when the resolution sanctioning the increase of capital became operative; giving the same meaning to the word "members" in each resolution, the persons indicated as being entitled to an option would be the same. But, even if this were not so, no majority of the shareholders, even by special resolution purporting to alter the regulations of the company, could retrospectively affect, to the prejudice of non-consenting owners of paid-up shares, the rights already existing under article 27. At the date of the confirmation of the last in date of the resolutions, the name of Mr. James still appeared upon the register of members as the holder of the ten fully paid-up shares which he held when the resolution sanctioning the increase of capital was passed, and under both special resolutions five £100 shares out of the new capital, or fifty £10 shares into which they were sub-divided, would have to be offered in respect of those fully paid-up shares, unless his death in the meantime had set those shares free to be otherwise disposed of by the

directors.

The plaintiff had proved James' will before April, 1893, but it had been necessary to send out the probate to the Argentine Republic, and without any default on her part it was not produced to the company until December, 1894. In May, 1893, the death of Mr. James was known to the company, and the secretary sent to the address of a company in which Mr. James held shares, though it was not his registered address for the purpose of the articles, a circular addressed to the executor of the late Mr. James, but the circular never reached Mrs. James. Similar circulars were sent to all the members, and all prescribed a limit of ten days for them to come in and exercise the option

The real question is whether the provision of article 27 of Table A for offering the new shares to members, is intended to be confined to members in the stricter sense of the word, or whether it may not include the representatives of deceased members. Speaking generally, the executors of a deceased member of a limited company as representing the estate, are entitled to all the profits and advantages attaching to the shares belonging to their testator, and subject to all the incidental liabilities, although in terms such profits, advantages, and liabilities would seem to attach to members only. Thus, under article 72 of Table A, which provides that the directors may, with the sanction of the company in general meeting, declare a dividend to be paid to the members in proportion to their shares, it would be difficult to hold that the estate of a deceased member, and his executors as representing his estate, are not entitled to a proper proportion of dividend, though the executors may not be themselves registered members. So it could hardly be contended that under article 4, providing that the directors may make calls upon the members, the estate of a deceased member, liable to bear calls made after his death, so long as and his executors as representing that estate, are not

The liability for

his share remains untransferred.
calls exists, notwithstanding the fact that the required
notice cannot effectually be given to a dead man,
because it may be given to his representatives;
though, if the company is not aware of his death,
notice served at his registered address is sufficient
when the articles provide for such service upon mem-
bers: New Zealand Gold Extraction Co. v. Peacock.

In all these cases the result is arrived at by treating the word "member” as including deceased member so long as his name is on the register, or, the deceased member as being a member for the what comes to the same thing, treating the estate of purpose both of profit and liability: In re Agriculturist Cattle Insurance Co., Baird's Case. In my judgment a similar construction should be applied to article 27 of Table A; with the result that the estate of Mr. James, as represented by his executrix, who is now registered owner of his paid-up shares, is entitled to an allotment of the fifty new £10 shares reserved in May, 1893.

The main argument against the construction arises from the possible inconvenience to the company arising from delay in communicating with the personal representatives of deceased members. There may be cases in which it would be a hardship on a company not to be able to dispose of shares which would have gone to the estate of a deceased member, ment, but no such case arises here, and it would where loss would arise from postponing the allotsanctioning the increase of capital, and the mere fact be quite easy to provide for such cases when that such an inconvenience may arise, does not appear article 27 in such a manner as to produce inequality to me to afford a sufficient reason for construing instead of equality among the holders of shares. A. L. Smith, L.J., has read and concurs in this judgment.

Appeal allowed.

Solicitors, Parker, Garrett, & Parker, for F. F. Clarke, Walsall; Budd, Johnsons, & Jecks.