1866. NOBLE v. WARD. contract C. was within the Statute of Frauds or not. If not there was no need for a writing. If, yes, it was because it was a contract for the sale of goods, and so within the 17th section of the statute. That says that "no contract for the sale of goods for the price of 101. or upwards shall be allowed to be good except" there is an acceptance, payment or writing. The expression "allowed to be good" is not a very happy one; but whatever its meaning may be, it includes this at least, that it shall not be held valid nor enforced. But this is what the defendant was attempting to do. He was setting up this contract C. as a valid contract. He was asking that it should be allowed to be good to rescind contract B. It is attempted to say that what took place when contract C. was made was two-fold. First, the old contracts were given up, secondly, a new one made. But that is not so, what was done was all done at once, was all one transaction, one bargain, and had the plaintiff asked for a writing at the time, and the defendants refused it, it would all have been undone and the parties remitted to their original contracts. I think, therefore, that on principle it was wrong to hold the old contract was gone. Moore v. Campbell is an authority to the same effect. It is true that case may be distinguished on the facts, viz., that there what was to be done under the new arrangement in lieu of the old was to be done at the same time, so that it might well be the parties meant not that the new thing should be done, but if done should be in lieu of the old. Such an argument could not be used in this case. But it was not the ground of the judgment there, which is that the new agreement was void. The cases of Goss v. Lord Nugent, Stead v. Dawber and others, only show that the new contract C. cannot be enforced, not that the old contract B. is gone. I think it was not. Inconvenience and absurdity may arise from this. For instance, if the defendants signed the new contract and not the plaintiff, the plaintiff would be bound to the old, and the defendants to the new, or if in the course of the cause a writing turned up signed by the plaintiff, then they would first rely on the old and afterwards on the new contract. But this is no more than may happen in any case within the 17th section, where there has been one contract only. But then it was said before us that the plaintiff was not ready and willing to deliver under contract B. Probably not, and he supposed contract C. was in force. In answer to this, the plaintiff contended before us this point was not made at the trial, to which the defendants replied, neither was the point that the old contract was in force. My recollection is so, that the case was opened and maintained as on the new contract; but I agree with Mr. Mellish a nonsuit ought to be maintained on a point not taken at the trial, only when it is beyond all doubt. I cannot say this is. Consequently, I think the rule should be absolute, but under the circumstances the costs of both parties of the first trial ought to abide the event of the second. CHANNELL, B., said.-I am authorized by the Lord Chief Baron and my brother Pigott to say that the judgment, which I have read as the judgment of my brother Bramwell, is one in which we all agree. Rule absolute. 1866. NOBLE v. WARD. 158 1866. HILARY TERM, 29 VICT. Jan. 29. A Judge has power, under the 1 & 2 Vict. c. 110, ON CRAGG V. JOHN TAYLOR. N the 31st of August, 1865, judgment was signed in this action against the defendant for 1987. 1s. 1d. On the s. 14, to order 4th of November following Martin, B., made an order at Chambers, under the 1 & 2 Vict. c. 110, s. 14, that fifty shares in the Glynrhonwy Slate Company (Limited), registered in the name of the defendant, do stand charged with shares in a joint stock Company to stand charged with payment of a judgment debt recovered payment of that amount. against the registered owner of the shares, although he holds them as trustee only. The affidavit in support of the order stated that the Glynrhonwy Slate Company was incorporated in March, 1860, under the Joint Stock Companies' Act, 1856; and that by a deed of transfer under the hands and seals of Vernon Taylor, a registered shareholder in the Company, and the defendant, dated the 12th July, 1865, Vernon Taylor, in consideration of 10s. paid to him by the defendant, bargained, sold, assigned and transferred to the defendant fifty shares in the Company; and on the 11th September the deed of transfer was duly registered in the books of the Company. Cole, in the present Term, obtained a rule calling on the plaintiff to shew cause why the order of Martin, B., should not be rescinded. The affidavits in support of the application stated that the fifty shares were transferred to the defendant as trustee for his brother, Vernon Taylor, and in order that the defendant might be a director of the Company for the support of his brother's interest, and that the defendant had not any beneficial interest whatever in such shares. McIntyre now shewed cause.-The order was correctly HILARY TERM, 29 VICT. made under the 1 & 2 Vict. c. 110, s. 14 (a). The defend- (a) Enacts:-"That if any person against whom any judgment shall have been entered up in any of her Majesty's superior Courts at Westminster shall have any government stock, funds, or annuities, or any stock or shares of or in any public Company in England (whether incorporated or not) standing in his name in his own right or in the name of any person in trust for him, it shall be lawful for a Judge of one of the superior Courts, on the application of any judgment creditor, to order that such stock, funds, annuities, or shares, or such of them or such part thereof respecVOL. IV.-H. & C. M tively as he shall think fit, shall (b) 7 Exch. 796. EXCH. 1866. CRAGG D. TAYLOR. 1866. CRAGG v. TAYLOR. Baker v. Tynte (a) shews that whatever the nature of the interest, and however uncertain as to its extent, it is chargeable. [Martin, B.-By section 14 the order entitles the judgment creditor to all such remedies as he would be entitled to if such charge had been made by the judgment debtor; therefore all that the judgment creditor obtains is a charge in equity, and a Court of equity must determine whether the judgment debtor has any beneficial interest which could be charged.] H. T. Cole, in support of the rule.-The legislature could never have intended that shares standing in the name of a trustee should be charged with his judgment debts. Shares in joint stock Companies are frequently the subject of marriage settlement, and if a Judge has power to charge them whenever a judgment is recovered against the trustees, the cestui que trust will be driven to a Court of equity to get rid of the charge. The 1 & 2 Vict. c. 110, s. 14, is carefully framed to prevent that mischief by giving a power to charge only when the shares are standing in the name of the judgment debtor in his own right. [Pollock, C. B.— Would not a trustee be liable in an action for calls?] He would be estopped from saying that he was not the holder of the shares; but in the case of a charging order the question is whether the person in whose name the shares are registered has any beneficial interest in them. [Pigott, B.-Can this Court inquire into that?] The 30th section contemplates a trust, because it provides that no notice of any trust shall be entered on the register. By the 14th section shares standing in the name of a trustee for the judgment debtor may be charged for his debts, but they cannot be charged for the debts of the trustee. (a) 2 E. & E. 897. |