New Brunswick & Company v Muggeridge

JurisdictionEngland & Wales
Judgment Date01 January 1859
Date01 January 1859
CourtHigh Court of Chancery

English Reports Citation: 62 E.R. 263

HIGH COURT OF CHANCERY

New Brunswick, &c.
Company
and
Muggeridge

For other proceedings, see 4 H. & N. 160; 1 Dr. & Sm. 363.

Company. Partnership. Plea.

[686] new brunswick, &c., company v. muggeridge. March 7, 24, 1859. [For other proceedings, see 4 H. & N. 160; 1 Dr. & Sm. 363.] Company. Partnership. Plea. A bill by a company alleged that the Defendant had agreed to accept shares. The articles of association were silent as to the mode of acceptance, and the Joint Stock Companies Act, sect. 9, and Sched. B, applied, by which the acceptance must be in writing signed. Defendant had never signed an acceptance. This fact and the statute were set up by plea. Held, I. The plea was bad in form, as it raised no fact not raised by the bill. II. The agreement was a good agreement to do that which the statute required. III. The decree would not be nugatory, as in a joint stock partnership a partner cannot put an end to the partnership, but only to his own quality of shareholder; he must remain shareholder, or constitute another person shareholder in his place. In this case a company had been formed in England for adopting a colonial association formed for constructing a railway in Canada. The memorandum and articles of association were set out in the bill, but as the point in the case turned not on what was in them, but on what was not in them, it is not necessary here to set them out: the articles of association did not prescribe any regulations as to the acceptance of shares. The Defendant signed an application for shares, and deposited it at the company's office, and paid a deposit. It was in the following form :-- " To the Directors of the New Brunswick and Canada Railway and Land Com pany.-Gentlemen,-Having paid into the hands of the Messrs. - Bank, of London, the bankers of the proposed company, the sum of six hundred pounds, I request you will allot me one hundred shares of Class A, two hundred shares of Class B in the said undertaking, [687] and hereby agree to accept such shares or any less number that may be allotted to me, and to pay the future calls thereon. "Signature-W. muggeridge, "Profession-Corn Merchant, "Eesidence-3 Fowkes Buildings, Great Tower Street, City." ,In consequence of this application shares were allotted to the Defendant. The other material facts stated in the bill appear in the Vice-Chancellor's judgment : the substantial question argued was whether upon the agreement of the Defendant to take shares, having regard to the decision of a Court of law to the effect that such acceptance would not enable the Plaintiff to sue at law, a bill would lie t ? òcompel performance of it. 264 NEW BRUNSWICK, ETC., CO. V. MU6GBEIDGE 4DKEWRY.688. The bill stated that an action for calls had been brought in the Exchequer against the Defendant, and the Court was of opinion that the Defendant's agreement to take shares was not an acceptance within the Joint Stock Companies Act, 1856, so as to enable the Plaintiffs to recover at law. The bill was in effect for specific performance, and it prayed that the Defendant might be ordered to sign an acceptance of his shares and to pay the calls due upon them. To this bill the Defendant .put in the following plea and answer:-That the said New Brunswick and Canada fiailway and Land Company, Limited, is subject to the provisions of the Joint Stock Companies Act, 1856, and that by the 9th section of the Joint [688] Stock Companies Act, 1856, it is enacted that the memorandum of association required by the 3d section of the said Act may be accompanied by, or have annexed thereto or endorsed thereon, articles of association signed by the subscribers to the memorandum of association, and prescribing regulations for, the company, but if no such regulations are prescribed, or so far as the same do not extend to modify the regulations contained in the table marked B in the schedule thereto, such last-mentioned regulations shall, so far as the same are applicable, be deemed to be the regulations of the company, and shall bind the company and the shareholders therein to the same extent as if they had been inserted in articles of association and such articles had been registered; and that by the 19th section of the same Act it is, amongst other things, mentioned that every person who has accepted any share in a company registered under the said Act, and whose name is entered in the register of the shareholders, and no other person (except a subscriber to the memorandum of association, in respect of the shares subscribed for by him) shall for the purposes of the ^aid Act be deemed to be a shareholder: and this Defendant avers that the first of the regulations contained in the said table marked B is in the words following:- " No person shall be deemed to have accepted any shares in the company unless he has testified his acceptance thereof by writing under his hand in such form as the company from time to time directs," as by the said Act appears : and this Defendant avers that the articles of association set forth in the said bill did not prescribe any regulation as to the acceptance of shares in the said New Brunswick and Canada Railway and Land Company, Limited : and this Defendant further for plea saith that neither he,.this Defendant, nor any person by him lawfully authorized, did ever testify his acceptance of any share or shares in the said com-[689]-pany by writing under his hands, all which matters and things this Defendant doth aver to be true and is ready to prove as the honorable Court shall award; and therefore he doth plead the same in bar to the said Plaintiffs bill, and prays the judgment of...

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4 cases
  • Udall v Capri Lighting Ltd
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 12 March 1987
    ...of course take account of that evidence. It is old and trite law that the "court will not make any order in vain"—see, e.g. New Brunswick, etc. Co. v. Muggeridge (1859) 4 Drew. 686, 699 cited and applied by Megarry V-C in Tito v. Waddell (No. 2) (1977) Chancery 106 at p. 326. The propositi......
  • Tito v Waddell (No. 2); Tito v Attorney General; Ocean Island (No. 2)
    • United Kingdom
    • Chancery Division
    • Invalid date
    ...7 F. 308. Musselburgh Real Estate Co. Ltd. v. Provost of Musselburgh [1905] A.C. 491, H.L.(Sc.). New Brunswick etc. Co. v. Muggeridge (1859) 4 Drew. 686. New Zealand Shipping Co. Ltd. v. A. M. Satterthwaite & Co. Ltd. [1975] A.C. 154; [1974] 2 W.L.R. 865; [1974] 1 All E.R. 1015, P.C. Palmer......
  • Northern Territory v Sangare
    • Australia
    • High Court
    • 14 August 2019
    ...[49], 126-127 [143]-[144]. 35 See, eg, Benson v Benson (1710) 1 P Wms 130 at 131 [ 24 ER 324 at 325]; New Brunswick etc Co v Muggeridge (1859) 4 Drew 686 at 699 [ 62 ER 263 at 36 For example, specific performance of an agreement to execute a partnership deed will not be ordered where the pa......
  • The Oriental Inland Steam Company Ltd v Briggs
    • United Kingdom
    • High Court of Chancery
    • 11 December 1861
    ...had taken place in filing the bill. Sir Hugh Cairns and Mr. Cotton, for the Appellants, referred to New Brwuioirk Company v. Afuyi/erulye (4 Drew. 686); Due v. Banckn (4 B. & Aid. 401); Wmitner \. Shairp (4 Railw. Gas. 542); Duke v. Andrews (5 Kailw. Cas. 490); England v. Ourlinrf (8 Beav. ......
10 books & journal articles
  • Specific Performance and Injunctions
    • Canada
    • Irwin Books The Law of Contracts. Third Edition Remedies
    • 4 August 2020
    ...circumstances where delay has been coupled 126 See, for example, New Brunswick and Canada Rwy and Land Co v Muggeridge (1859), 4 Drew 686, 62 ER 263 (VC); Scott v Rayment (1868), LR 7 Eq 112. 127 See Anders Utkilens Rederi A/S v O/Y Lovisa Stevedoring Co A/B, The Golfstraum , [1985] 2 All E......
  • Specific Performance: Discretionary Defences and Considerations that Affect Discretion
    • Canada
    • Irwin Books The Law of Equitable Remedies - Third edition
    • 18 November 2023
    ...in Gong v Neuhaus Management Ltd , 2021 ONSC 531 at para 49. 168 See New Brunswick & Canada Rly & Land Co v Muggeridge (1859), 4 Drew 689, 62 ER 263 at 268, Kindersley VC. 169 Discussed in N. Witzleb, “Equity Does Not Act in Vain: An Analysis of Futility Arguments in Claims for Injunctions”......
  • Table of Cases
    • Canada
    • Irwin Books Archive The Law of Equitable Remedies. Second Edition
    • 18 June 2013
    ...Inc., 2005 FC 1405 ....................................55, 146 New Brunswick & Canada Rly & Land Co. v. Muggeridge (1859), 4 Drew. 686, 62 E.R. 263, 7 W.R. 369 (V.C.) .......................... 343, 405 New Westminster (City) v. Kennedy, [1918] 1 W.W.R. 489, [1918] B.C.J. No. 152 (Co. Ct.) ......
  • Table of cases
    • Canada
    • Irwin Books The Law of Equitable Remedies - Third edition
    • 18 November 2023
    ...2019 NBCA 33 ................................................. 140 New Brunswick & Canada Rly & Land Co v Muggeridge (1859), 4 Drew 686, 62 ER 263, 7 WR 369 (VC) ..............................................479, 559 New Westminster (City) v Kennedy, [1918] 1 WWR 489, [1918] BCJ No 152 (Co ......
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