1904.

THE KING
ROWELL)

K. B. Div. disentitles an unregistered person from taking the name or title of dentist" or "any name, title, addition, or description implying that he is a person specially qualified to practise dentistry," and by the next sentence of the section, such taking or using is made a REGISTRAR JOINT STOCK criminal offence.

V.

COMPANIES.

What is the effect of these provisions? He cannot take the Palles, C.B. title of "dentist." Why? Because it is not his title-because he is not a dentist. A man can lawfully call himself what he is. He cannot be guilty of a criminal offence by truly styling himself what he is. Therefore, unless the 3rd section is to be held to involve absurdity and injustice, it must involve this, that the criminal offence is the styling himself that which he is not. Thus an unregistered person by styling himself a dentist makes a misstatement calculated to deceive, presumably with a view to his own profit, and certainly to the great detriment of the public; and it is in entire consonance with the spirit of our criminal law to constitute this an offence. Whereas, if you exclude the falsity of the statement, the corpus delicti is one outside the class of acts usually made offences by modern statutes.

Upon the whole I am satisfied that the true meaning of the statute is, that in the view of the Legislature an unregistered person is not a dentist; and although the statement by one person that an unregistered person (other than himself) is a dentist, is not a criminal offence, because it is not so constituted by statute, it still is a false statement.

I take now the proposed title of this Company, "S. G. Rowell, Dentist, Limited." If the word "dentist" is to be taken to refer to S. G. Rowell, the name would involve a false statement; S. G. Rowell is not a registered dentist. On the other hand, if it is to be taken that the word "dentist" refers to the Company and not to the individual S. G. Rowell, and that the whole expression means that the Company is a dentist, still, reading dentist, as I hold it should be read as meaning registered dentist, a false statement would be involved, because the Company is not (and could not be) registered under the Act.

Mr. Dunn has argued that everyone is to be presumed to know that a Company cannot be registered under the Dentists Act, and as the word "limited" in the name indicates that the per

1904. THE KING (ROWELL)

son referred to is a company, therefore no one can be deceived by K. B. Div. the name. I do not agree in this; in my opinion there is not in such a case any such presumption, and I entertain no manner of doubt that the name, if the Company be formed, will deceive many, if indeed such deception is not one of the purposes for which JOINT STOCK the Company is sought to be formed.

v.

REGISTRAR

COMPANIES.

This, in my opinion, concludes the whole case. I think that Palles, C. B. this Company is applying to be registered under a name in consequence of which every one of its acts, every use of its name, will involve a false representation, and that this is done deliberately, if not for the purpose of representing, at least with the knowledge that its effect will be to represent, to the public that the business of a dentist is being carried on by the Company through agents who are persons "specially qualified to practise dentistry," when in fact the agents so acting either are not, or at least need not necessarily be, so specially qualified. As the aid of this Court, and of the prerogative writ of mandamus, cannot be granted either for the purpose or with the effect of perpetrating a fraud, this application ought to be refused; and, of course, refused with costs.

ANDREWS and JOHNSON, JJ., concurred.

Solicitor for the prosecutor: John Cashin.

Solicitors for the Irish Branch of the British Dental Association:
W. G. Bradley & Sons.

Solicitors for the Registrar of Joint Stock Companies for
Ireland: D. & T. Fitzgerald.

J. G. T.

1903.

Nov. 26-28.

1904. Feb. 13.

K. B. Div. HIS MAJESTY'S ATTORNEY-GENERAL FOR IRELAND, INFORMANT; JOHN JAMESON, GEORGE JAMESON, AND WM. ROBERTSON, DEFENDANTS (1). Company-Articles of association-Shares-Restrictions on transfer-Right of pre-emption-Estate duty-Principle of valuation-Sale in open market -Property passing on death-Repugnancy-Rule against perpetuity— Companies Act, 1862 (25 & 26 Vict. c. 89), s. 16-Finance Act, 1894 (57 & 58 Vict. c. 30), ss. 1, 2, 3, 5; 7, sub-s. 5; 13, 22 (b).

By will, dated the 26th July, 1901, a testator devised all the residue of his property to his executors upon trust, to pay the interest of one-sixth part thereof to each of five of the testator's sons and daughters, respectively, for life; and of the remaining one-sixth part, to such of the children of a deceased daughter as should then be living, in equal shares; and he directed that, subject to the said life estate, his trustees should hold the said respective sixth parts or shares (save as to the share of one daughter, which, after her death, was to be held in trust for the remaining residuary legatees) upon trust, for such person or persons as the parties respectively entitled to a life interest in the said shares might by deed or will appoint.

The testator died on the 15th September, 1901, and the said will was duly proved by the three executors therein named. The residuary estate of the testator included 750 fully paid-up shares in the firm of J. J. & Son, Ltd., a Company registered on the 9th October, 1891, under the Joint Stock Companies Acts, dividends upon which had been paid by the Company for some years previously to the testator's death at the rate of twenty per cent. per annum.

The articles of association of the Company contained an elaborate series of provisions relating to the registration of holders and to the alienation of shares in the Company, whereby it was (inter alia) provided that any member proposing to transfer a share should serve a "transfer notice " upon the Company (who were not bound to recognise any equitable claim in a share) of his intention to transfer, which notice constituted the Company his agent for the sale of the share to any member at the "fair value thereof," the latter being defined as a sum of £100, or such other sum as should from time to time be fixed as the "fair value" by resolution of the Company in general meeting. No share could, save as therein provided, be transferred to a non-member so long as any member was willing to purchase the same at the "fair value,” the directors being empowered to refuse to register any transfer to a non-member

(1) Before PALLES, C.B., and BOYD and KENNY, JJ.

v.

JAMESON.

of whom they did not approve, such transfer being void. Upon the Company, K. B. Div. within twenty-eight days after the service of the "transfer notice," finding a 1903. member willing to purchase, the retiring member was bound, upon payment of ATTY.-GEN. the "fair value," to transfer the share to the purchasing member, in default of which the Company might receive the purchase-money and enter the name of the purchasing member in the register as the holder of the share. In the event of the Company not finding a purchaser within the twenty-eight days specified, the retiring member might, within three months, sell and transfer the share to any person, subject to the approval of the directors, and at any price. It was also provided that the executors or administrators of a deceased member should be the only persons recognised by the Company as having any title to the shares registered in the name of such member, and that any person becoming entitled to a share in consequence of the death of any member might, subject to the regulations contained in the articles, transfer such share to himself or any other person; the executors of a deceased member being further empowered, subject to the approval of the directors, to transfer the share of such member to his son or brother, or to any son or brother of any existing member.

Upon the death of the testator the executors paid for estate duty in respect of the said 750 shares a sum calculated on the basis that the value thereof was, having regard to the right of pre-emption and restrictions on transfer and sale contained in the articles, limited to the "fair value" of each share fixed by the articles at £100, and refused to pay any further duty.

On an information by the Attorney-General, seeking a declaration that on the death of the testator estate duty became payable, under the Finance Act, 1894, upon the principal value of the said shares, being the price which same would fetch if sold in the open market at the time of the testator's death, and that such value was not limited to the "fair value" of £100 a share, or for the determination of the manner in which such value was to be ascertained :—

Held, (1) That the principal value of the shares to which the testator was entitled at the time of his death was to be estimated at the price which the same would, in the opinion of the Commissioners of Inland Revenue, fetch if sold in open market at the time of such death, and that such principal value was not necessarily limited to the par or "fair value" of £100 a share.

(2) Per Boyd and Kenny, JJ. (Palles, C.B., diss.), that in estimating such principal value regard was to be had by the Commissioners to the special provisions in the articles of association with reference to alienation and transfer of the shares of the Company, and as to the "fair value" thereof.

(3) Per Boyd and Kenny, JJ., that the articles of association were not invalid, either as infringing the rule against perpetuity, or as being repugnant to the right of alienation inherent in absolute ownership.

Held, per Palles, C.B. (without expressing any opinion as to the validity of the articles), that inasmuch as the entire legal and equitable interest in the shares was vested in the testator at the time of his death, the whole of such

K. B. Div, interest formed portion of the deceased's property passing on his death within 1903. section 1 of the Finance Act, 1894, and was accordingly subject to the payATTY.-GEN, ment of estate duty, that portion of the value of the shares which represented v. the right of pre-emption being properly within section 2, sub-section (b) of the JAMESON. Act, and therefore deemed to pass, and that, on the true construction of section 7, sub-sect. 5, of the Finance Act, the valuation of the shares ought to be based upon a supposititious, not an actual, sale in the open market, excluding the consideration of such provisions in the articles of association as would prevent a purchaser at the sale from becoming a member of the Company, and registered as such in respect of the shares purchased by him at such supposititious sale.

Borland's Trustee v. Steel, Bros., & Co., Ltd. ([1901] 1 Ch. 279), followed.

INFORMATION at the suit of His Majesty's Attorney-General for Ireland, on behalf of His Majesty, addressed to the Right Honourable the Lord Chief Justice of Ireland, and to the rest of the Judges of the King's Bench Division of the High Court of Justice in Ireland, as follows:

Henry Jameson, late of Hermitage, Roebuck, in the county of Dublin, deceased, by his will, dated 26th July, 1901, appointed his two nephews, the defendants John Jameson and George Jameson, and his son-in-law, the defendant William Robertson, the executors thereof, and, after divers pecuniary and other bequests, devised all the rest of his property to his executors (thereinafter called his trustees) upon trust out of his said properties and effects other than his shares in the firm or business of John Jameson & Son, Ltd., Bow-street Distillery, in the city of Dublin, to pay or transfer to the defendant William Robertson the sum of £47,000, to be held by him upon trust to set apart such parts thereof, and to pay the dividends and interest in such parts during the times and to the persons therein particularly mentioned; and the testator directed that in case the property he should leave, other than his shares in the said firm of John Jameson & Son, should not be sufficient to pay the said sum, then his trustees should, out of the dividends, interest, and income of his entire properties and effects, including the said shares in the firm of John Jameson & Son, Limited, pay the dividends and interest on said sums, together also with the annuities therein mentioned to the persons therein specified. The testator (inter alia) directed that his trustees should hold the rest, residue, and remainder of