ment debtor, "whether in possession, remainder or reversion, and whether vested or contingent," as well in any such stocks or shares as aforesaid as also in the dividends, interest, or annual produce of such stocks, &c. A rule having been obtained to set aside the order of Bramwell, B., on the ground that the defendant had an interest in the shares capable of being charged, Jan 12. H. T. Cole, Q.C., shewed cause. These shares stand in the name of Bennett, not in trust for Taylor, but (as to the balance, if any, beyond the debt due to him) in trust for the trustees of Taylor. Taylor has no interest in the shares, except what may arise in the event of his surviving his wife and of none of his children attaining the age of twenty-one or marrying. That is too remote an interest to be chargeable. 1867 CRAGG v. TAYLOR. McIntyre, in support of the rule. Taylor has, unquestionably, some interest under the deed. There is not only the ultimate limitation in his favour, but also the possibility of the trustees exercising their discretion at once for his sole benefit. Then Bennett is a trustee for him to the extent of his interest, whatever that may be. He would have, no doubt, in the first instance to pay the trustees under the deed, but they would be mere conduit pipes, to pass on whatever they received to their cestui que trust. In Baker v. Tynte (1), it was held that a contingent life interest in X stock, which had been assigned by the debtor on certain trusts with an ultimate trust in his own favour, was chargeable. The policy of the acts is to enable a creditor to charge any interest, however small. Cur, adv. vult. Jan. 26. The judgment of the Court (Kelly, C.B., Martin, Channell, and Pigott, BB.) was delivered by KELLY, C.B. This is a rule to set aside an order of Bramwell, B., discharging an order of Byles, J., charging certain shares in a company with a debt due by the defendant Taylor, on the ground that the shares, which are in the name of one Bennett, are held by him in trust for Taylor; and the question (1) 2 E. & E. 897; 29 L. J. (Q.B.) 233. 1867 CRAGG v. TAYLOR. is, whether Taylor possesses an interest in these shares which can be attached or charged under 1 & 2 Vict. c. 110, s. 14, and 3 & 4 Vict. c. 82, s. 1. The interest in question arises under a deed which, subject to a claim of one Bennett, in respect of several sums of money advanced by him to Taylor, conveys these shares, with other property, to certain trustees in trust: First, to pay a debt due by Taylor. Secondly, to apply the trust fund to the maintenance of Taylor, his wife and children, at the discretion of the trustees. Thirdly, to pay the dividends for life to Sarah, the wife of Taylor. Fourthly, to pay over the fund, at the death of the wife, to such of the children as the husband and wife shall appoint, and in default of appointment, the fund to be equally divided among such of the children as shall attain the age of twenty-one. Fifthly, if no child shall attain the age of twenty-one, then to Taylor and his assigns. This is a contingent interest only; and it may be doubted Xwhether, under 1 & 2 Vict. c. 110, s. 14, such an interest could be attached. But by 3 & 4 Vict. c. 82, s. 1, any interest of a judgment debtor, whether vested or contingent, may be charged. It is unnecessary, therefore, to rely upon the judgment of the Court of Queen's Bench in the case of Baker v. Tynte (1), where the general effect of both acts of parliament seems to have been fully considered; for under the express terms of the later act-3 & 4 Vict. e. 82-a contingent interest of this nature is made chargeable. The mortgagee of the shares and the trustees under the deed may no doubt be delayed in their remedy for their own claims by the sale or other disposition of the shares, until they can obtain the authority of a court of equity. But this is an inconvenience, in many cases inevitable, in giving effect to these acts, which are imperative in their terms, and compel a court of law to order that the property shall be charged. This rule, and the original order of Byles, J., must therefore be made absolute. Attorney for plaintiff: George Smith. (1) 2 E. & E. 897; 29 L. J. (Q.B.) 233. Rule absolute. [IN THE EXCHEQUER CHAMBER.] NOBLE v. WARD AND OTHERS. Statute of Frauds (29 Car. 2, c. 3), s. 17—Variation of Contract—Implied A contract in writing was made for the sale of goods above 107. in value, to be delivered at a future time. Before the time for delivery arrived the parties made a parol agreement extending the time: Held, that the parol agreement, being invalid under the Statute of Frauds (29 Car. 2, c. 3), s. 17, did not effect an implied rescission of the former contract. Moore v. Campbell (10 Ex. 323) followed. APPEAL from the judgment of the Court of Exchequer making absolute a rule to set aside a nonsuit, and for a new trial."(1) Holker (Baylis with him), for the appealing defendants. The defendants' contention is, that the contract of the 27th of September although not enforceable at law, by reason of s. 17 of the Statute of Frauds, is good to rescind the previous contract of the 18th of August. It is stated in Com. Dig. Action on the Case. Assumpsit (G), that a written contract may be discharged by parol, or impliedly by a subsequent inconsistent promise; and this rule was followed recently in Hobson v. Cowley (2) and Lavery v. Turley. (3) It is not therefore conclusive against the rescission of the contract of the 18th of August by that of the 27th of September that the latter was not in writing. In the second place, it is established by Stead v. Dawber (4), agreeing with Goss v. Lord Nugent (5), that where, by a new contract, the terms of a previous contract are varied, the old contract is rescinded, and a new contract embodying the alterations, and the unaltered part of the old one, is substituted for it; and Marshall v. Lynn (6), following that case, lays down that it is unnecessary to inquire whether the alteration is an essential part of the agreement. Therefore the contract of the 27th of (1) Reported Law Rep. 1 Ex. 117, where the facts and pleadings are stated. (2) 27 L. J. (Ex.) 205. (3) 30 L. J. (Ex.) 49. (6) 6 M. & W. 109, at p. 117. 1867 Feb. 8. 1867 NOBLE v. WARD. September, extending the time for the performance of that of the 18th of August, rescinded the former contract, and made a new contract incorporating so much of the old one as remained unaltered. If, then, it had been in writing, it is clear that the substituted contract, and that alone, would have been enforceable. But although for want of the formality required by the statute, the contract of the 27th of September could not have been enforced, yet the provision that it shall not be "allowed to be good" does not make it void altogether, and it still has the effect of rescinding the former contract. [BLACKBURN, J. That argument amounts to this, that it is good for the purpose of rescission, though not good for any other purpose whatever. WILLES, J., referred to Doe d. Berkeley v. Archbishop of York (1) and Doe d. Biddulph v. Poole. (2)] This contention is supported by French v. Patton (3), where a contract having been altered in such a manner that it could not be sued on in its altered form (see Hill v. Patton (4)), it was held that the plaintiff could not sue upon it in its original form. [BLACKBURN, J. There the original contract, which was in writing, had itself been altered on the face of it, and the case was decided on the principle of Master v. Miller. (5)] The dictum in Moore v. Campbell (6), which is relied on by the plaintiff, was not necessary to the decision of the case, for there a new trial was necessary to ascertain whether any contract had been made by the defendant. He also referred to Taylor v. Hilary. (7) Mellish, Q.C. (Jones, Q.C., with him), for the plaintiff, was not called upon. WILLES, J. This is an appeal from the judgment of the Court of Exchequer making absolute a rule to set aside a nonsuit, and for a new trial. The action was brought for non-acceptance of goods (1) 6 East, 86. (3) 9 East, 351. (5) 4 T. R. 320. (6) 10 Ex. 323; 23 L. J. (Ex.) 310. (7) 1 C. M. & R. 741. pursuant to a contract dated the 18th of August, by which the goods were to be delivered in a certain time. The defendants pleaded that the contract was rescinded by mutual consent. At the trial, they established that, on the 27th of September, before any breach of that contract, it was agreed between the plaintiff and the defendants that a previous contract of the 12th of August should be rescinded (as to which no question is made), that the time for delivering under the contract of the 18th should be extended for a fortnight; and other provisions were made as to taking back certain goods, which we need not further notice. The contract of the 27th of September, however, was invalid, for want of compliance with the formalities required by s. 17 of the Statute of Frauds. The defendants contended that the effect of the contract to extend the time for delivery was to rescind the contract of the 18th of August; and if the former contract had been in a legal form, so as to be binding on the parties, that contention might have been successful, so far as a change in the mode of carrying out a contract can be said to be a rescission of it; but the defendants maintained that the effect was the same, although the contract was invalid. In setting aside the nonsuit directed by the learned judge who tried the cause, the Court of Exchequer dissented from that view, and held that what took place on the 27th must be taken as an entirety, that the agreement then made could not be looked on as valid, and that no rescission could be effected by an invalid contract. And we are of opinion that the Court of Exchequer was right. Mr. Holker has contended, that though the contract of the 27th of September cannot be looked on as a valid contract in the way intended by the parties, yet since, if valid, it would have had the effect of rescinding the contract of the 18th, and since the parties might have entered into a mere verbal contract to rescind simpliciter, we are to say that what would have resulted if the contract had been valid, will take place though the contract is void; or, in other words, that the transaction will have the effect which, had it been valid, the parties would have intended, though without expressing it, although it cannot operate as they intended and expressed. But it would be at least a question for the jury, whether the parties did intend to rescind-whether the transaction was one which could not otherwise 1867 NOBLE บ. WARD. |