CATON V. CATON. Equity Cour:s. [CHAN. COURT OF APPEAL IN CHANCERY. Reported by THOMAS BROOKSBANK and E. STEWART ROCHE Esqrs,, Barristers-at-Law. H. OF L.] receive it. It is received in respect of passenger traffic, and is therefore to be accounted for, and the duty paid to Her Majesty. That, indeed, was not the point mainly relied upon by the apps., but what was relied upon was, that although by the statute of the 5 & 6 Viet. this duty is imposed, the subsequent statute of the 7 & 8 Viet. c. 85, passed two years afterwards, made an exemption in respect of the money that was received from passengers travelling by this particular train. That exemption depends upon this fact: the Legislature, in order to provide for the poorer class of travellers, enacted that on and after the several days thereinafter specified, all passenger railway companies shall, by means of one train at the least, to travel along their railway from one end to the other, of each trunk, branch, or junction line . belonging to or leased by them, so long as they shall continue to carry other passengers over such trunk, branch, or junction line, once at the least each day on every week-day, except Christmas-day and Good Friday (such exception not to extend to Scotland), provide for the conveyance of the third-class passengers to and from the terminal and other ordinary passengers' stations of the railway, under the obligations contained in their several Acts of Parliament, and with the immunities applicable by law to carriers of passengers by railway, and also under the following conditions: one of these conditions is, that such train shall start at an hour to be from time to time fixed by the directors, subject to the approval of the Lords of the Com-Held (reversing the decision of the court below), that there mittee of Privy Council for Trade and Plantations. Another is, that such train shall, if required, take up and set down passengers at every passenger-station which it shall pass on the line. Now, without going in detail into the reasons which have been very clearly stated as bearing on the case, though we did not quite understand them at first, it is plain that the Midland Railway Company, in running their trains from Birmingham into Gloucester, had not the power of stopping at every station on the portion of the line which is situate between Abbott's Wood and Stoke Prior, and therefore they could not comply with the latter condition. Whether it is technical or not, I do not know; but it is perfectly obvious that they cannot bring themselves within the former condition, as the Board of Trade have refused to give them their sanction. It appears to me, therefore, on these very short grounds (and the grounds seem to be very clearly stated as far as I have been able to gather from a cursory inspection of the judgment of the Lord Chief Baron) that the case was rightly decided, and that this appeal is entirely unfounded. I shall therefore move your Lordships that this appeal be dismissed with costs. Nov. 24, 25, Dec. 4, 7, 8, and Jan. 13. Marriage contract-Agreement in writing, but not signed Lord CHELMSFORD.-My Lords, the two points are perfectly clear, and I entirely agree with what has fallen from my noble and learned friend on the woolsack. had been no part performance of the contract; and that was not binding, as not being in writing, signed by the party to be charged therewith, within the meaning of the Statute of Frauds. This was an appeal from a decision of Stuart, V.C., which is reported 12 L. T. Rep. N. S. 532. His Honour made a decree declaring the plt., a widow, to be entitled to certain property of which she was possessed at the date of her marriage, and which by the act of marriage had become the legal property of her husband, on the ground of an alleged ante-nuptial contract for a settlement, which though entered into was not executed by the wife, she having been (as she alleged) prevailed upon to forego the execution, on the promise that her husband would provide for her by will, which promise he did not fulfil. The facts will be found fully stated in the previous report. Malins, Q. C. and Locock Webb, for the plt., contended that a solemn and binding obligation was entered into by the deceased when he induced this lady to put him in possession of all her fortune on the representation that he would do a certain thing. Although the Statute of Frauds, seet. 4, enacts that no contract shall be valid unless put in writing, that statute has never been allowed to cover false and fraudulent representations. This agreement could not be held to be merely one upon consideration of Lord KINGSDOWN.-My Lords, I am of the same marriage, because it had something more in its opinion. Judgment affirmed and appeal dismissed with costs. Res' solicitor, Solicitor of Inland Revenue. view than the simple fact of a marriage taking Gregory v. Mighell, 18 Ves. 328; Dixon v. Olmius, 1 Cox, 414; Prole v. Soady, 2 Giff. 1; 1 L. T. Rep. N. S. 309; Montacute v. Maxwell, 1 P. Wms. 618; Walford v. Gray, 12 L. T. Rep. N. S. 437; Ridley v. Ridley, 34 L. J. 462, Ch.; Muckleston v. Brown, 6 Ves. 69; Nunn v. Fabian, 13 L. T. Rep. N. S. 343; Hammersley v. De Biel, 12 Cì. & Fin. 45; CHAN.] CATON v. Caton. [CHAN. Chamberlaine v. Chamberlaine, 2 Freem. Ch. Rep. 34; | debentures, and various other matters, amounting Souch v. Strawbridge, 2 C. B. 808; Sir H. Cairns, Q. C., Greene, Q. C., and Elderton, for the defts., submitted that the promise given by Mr. Caton was a parol one, upon which no decree could be founded consistently with the Statute of Frauds. The 4th section of the statute enacts that after a certain day "no action shall be brought whereby to charge any person upon any agreement made upon consideration of marriage, unless the agreement upon which such action is brought shall be in writing, and signed by the party to be charged therewith." An agreement in consideration of marriage is one in which marriage is mentioned; therefore this parol agreement of the 12th Jan. was undoubtedly an agreement upon consideration of marriage. The view taken by the V. C. was that, if anything were done towards the performance of an agreement by the party sought to be charged, it was part performance. The V. C. said this gentleman made his will contemporaneously with his marriage, and therefore that was part performance. They contended there was no such theory of part performance, and that the plt.'s case entirely failed on the ground of contract. In Bleakley v. Smith, 11 Sim. 150, it was held that if you find the name of the party to the contract inserted in his own handwriting in such a way as to authenticate the contract by way of agreement, then the requirements of the Statute of Frauds are complied with; but when there are only initials to some terms in the agreement they do not bring it within the statute. It was clear that Mr. and Mrs. Caton had never come to any final agreement, because the draft was varied in several particulars by the striking out the Irish property. They also referred to Maunsell v. White, 4 H. of L. Cas. 1055; Hawkins v. Holmes, 1 P. Wms. 769; to about 13,000l. A proposal was made to settle the whole upon Mr. Caton for life, subject to the payment of the annual sum of 801. by way of pinmoney, with remainder to Mrs. Henley, with power by her to dispose of her property by will; and it was further intended by the proposal that a leasehold house belonging to Mr. Caton should be settled on Mrs. Caton after his death, and should go to her for her life, together with the furniture. These proposals were reduced into writing, and were signed by Mr. Caton and by Mrs. Henley, and were submitted to Mr. Emmet, Mrs. Henley's solicitor, with directions to prepare the necessary documents. A draft settlement was accordingly prepared by Mr. Emmet, and sent by him to Mrs. Henley on the 5th Jan. 1853, and Mrs. Henley handed it over to Mr. Caton, her then intended husband. On the next day, the 6th Jan., Mrs. Henley and Mr. Caton went together with the draft settlement and took it to Mr. Emmet, the solicitor of Mrs. Henley, and expressed their approbation of what had been so done: a fair copy was framed by him in accordance with this memorandum, and that copy included, as part of the property to be settled, the Irish property. On the day after, the 7th Jan., this was sent back either by Mr. Caton or by Mrs. Henley, with the consent of the other, to Mr. Emmet, with directions to strike out all that related to the Irish property, which Mr. Caton said was already so settled that Mrs. Henley would have it for life for her separate use, and it was therefore unnecessary to be expressed. Mr. Emmet therefore got the alterations so made, and sent the draft back so altered to Mrs. Henley on the 11th Jan., and on the same day Mr. Caton, in a conference he had with Mrs. Henley, proposed to her that, in spite of all that had been done, they should give up all notion of a settlement at all, and he promised that in that case he would give her by will all her property, in addition to the leasehold property. This gentleman at the time was advanced in life; he was, I believe, about seventy years of age, and Mrs. Henley was sixty, and he said it was ridiculous their making any settlements, and that she might rely upon his promise. On the next day Mr. Caton and Mrs. Henley went to Mr. Emmet and stated that they had given up all notion Lady E. Thynne v. The Earl of Glengall, 1 Keen, 769; of a settlement; but Mr. Emmet, as a prudent man, and 2 H. of L. Cas. 131. Malins, Q. C., in reply, contended that the alterations in the original contract went for nothing, as they had never been assented to by Mrs. Caton. The basis of the treaty for marriage was, that the property should be secured to the lady. It must, therefore, be assumed she would not have married without that engagement or expectation held out by Mr. Caton, which amounted to a contract. He submitted the general doctrine acted upon by that court and by the H. of L. was, that, if there be a deliberate and positive parol contract on a matter of fact that a certain thing shall or shall not be done, such contract was binding, and overrode the Statute of Frauds, which enacted that "a contract must be in writing, and signed by the party to be charged therewith." Jan. 13.-The LORD CHANCELLOR.-This was a bill filed by a plt. for relief under a parol contract in consideration of marriage. The facts stated by the bill are as follows:-In the autumn of the year 1852 a gentleman of the name of Richard Bewley Caton, since deceased, and then a widower, made proposals of marriage to the plt., Mrs. Harriet Caton, then a widow of the name of Henley. The pit, now Mrs. Caton, had a life-interest in certain real estates in Ireland, and she was possessed of personal estate, consisting of mortgages, railway remonstrated very strongly against this, and pressed CHAN.] CATON V. CATON. [CHAN. marriage or not, but I suspect it was immediately | have yet, in many cases, felt themselves at liberty after their return home that it was read out. The to disregard it when to insist on it would make it result of all that was, that Mr. Caton got possession the means of effecting instead of preventing fraud. of all the property; and he regularly paid to Mrs. This is the ground on which they require specific Caton the 801. a-year pin-money which if the settle- performance of a parol contract for the sale or purment had been executed she would have been chase of land, when that contract has been in part entitled to. So matters went on after the mar- performed. The right to relief in such cases rests riage had taken place. He lived to a very not merely upon the contract, but on what has been advanced age-about ninety, I think-and he died done in pursuance of the contract. His Honour, on the 24th Jan. 1864, about eleven years after the the V. C., according to the report of this case, marriage. He did not make the will which he had appears to have thought that the decisions under promised in Mrs. Caton's favour, leaving all his pro- this head of equity (and they are very numerous) perty to Mrs. Caton, but he made another will are inapplicable to the present case. But, with all leaving her, and his two sons by a former marriage, deference to the V. C., I cannot think that this is a to be his executrix and executors. Substantially correct view of the law. That marriage itself is no he made a provision for Mrs. Caton which was much part performance within the rule of equity is cersmaller than she would have received under the tain. Marriage is necessary in order to bring a settlement, and gave to his sons the rest of his pro- case within the statute, and to hold that it also perty. Whether there were any legacies I do takes the case out of the statute would be a palpable not know. In the month of April, about three absurdity. It was not, however, on the mere fact months after the death of her husband, she filed a of the marriage that the V. C. rested his judgment. bill praying in substance a declaration that she was His Honour relied upon many circumstances which absolutely entitled to all the property which he considered to have been well proved-that prebelonged to her at the time of her marriage, and viously to the marriage the intended husband, in also to the furniture of the leasehold house. The conformity with the verbal promise he had solemnly leasehold house in question had been sold during made to his wife, prepared a will whereby he gave the marriage by Mr. Caton, in concurrence with to her all that he had agreed to give her, and Mrs. Caton herself; therefore, there was no claim further, that he had executed this will in due form to that; but the furniture did remain, and what of law immediately after the solemnisation of the she claims is for furniture of that house. Then marriage. I do not, however, think, even if all it was prayed that the defts., the sons, who were the this had been clearly made out in proof, that it executors, might be decreed to assign all that over amounts to any part performance, so as to to her. Then there are a number of accounts which prevent the operation of the statute. The it is not necessary to consider. The cause came on; ground on which the court holds that part witnesses were examined, and as to the exact evidence performance takes a contract out of the purview given by each of the witnesses I do not think it is of the Statute of Frauds is, that when one of two at all necessary, from my view of the case, to notice contracting parties has been induced or allowed by that. The case was argued before Stuart, V. C., and the other to alter his position on the faith of the he made a decree giving the plt. substantially the contract, as for instance, by taking possession of relief which she asked. The defts., by their answer, land, expending money in building or other like deny that any such engagement as that alleged by acts, there the court will declare it to be a fraud in the plt. was ever entered into by the testator. Cer- the other party to set up the legal invalidity of the tainly there was no contract in writing signed by contract on the faith of which he induced or him, and they insist on the Statute of Frauds as allowed the person contracting with him to act. presenting an insuperable bar to the relief which is But such cases bear no resemblance to that now sought by the bill. The Statute of Frauds prevents under consideration. The preparing and executing the bringing of any action on any contract entered the will caused no alteration in the position of the into in consideration of marriage, unless it has been lady, and I presume it will not be argued that any reduced into writing and signed by the party to be consequences can be attached to acts of part percharged, and this court, if there be no equitable formance by the party sought to be charged. If I grounds for taking a case out of the operation of agree with A., by parol, that I will build a house the statute, has always held itself as much bound on my land, and then will sell it to him at a stipuby its provisions as are courts of law. That no lated price, and in pursuance of that agreement I action could be maintained on the alleged parol build a house, this may afford me ground for contract, on the foundation of which relief is sought compelling A. to complete the purchase, but it cerin this suit, is a proposition which admits of no tainly would afford no foundation for a claim by doubt. Courts of law are expressly forbidden to A. to compel me to sell on the ground that I had entertain any such actions. Unless, therefore, partly performed the contract. The circumstances something can be discovered in the conduct of the of the preparing and executing the will (supposing parties varying their legal rights, no suit for specific it to be satisfactorily proved) might afford strong performance of the same alleged contract can be evidence of the existence of the parol contract entertained in this court. It would be a scandal to insisted on, if that were a matter into which we were suppose that when the Legislature has said that no at liberty to inquire; but it can have no effect as action shall be brought on a parol contract of a giving validity to an otherwise invalid contract. I particular description, it should be open to one of must further observe that the nature of the alleged the contracting parties to escape from the enact- agreement was such as hardly to admit, even on ment by simply shifting his sphere of operations the part of the party to be charged, of anything like from a court of law to a court of equity. This, part performance. As a will is necessarily, until indeed, was not contended for on the part of the the last moment of life, revocable, a contract to plt. But it was argued that there are in this case make any specified bequest, even when a will having equitable grounds for enabling the court to give that effect has been duly prepared and executed, is relief notwithstanding the statute. The same in truth a contract of a negative nature, a contract clause of the statute which forbids the bringing not to vary what has been so prepared and executed. of any action upon any parol contract made in I own I do not see how there can be part performconsideration of marriage, also forbids the bringing ance of such a contract. It was contended that this of any action on any parol contract for the sale case might be likened to those where, notwithstandof land. But though courts of equity have held ing the Statute of Wills and the Statute of Frauds, themselves bound by this last enactment, they it has been held that when a person has induced CHAN.] Re BROWSE'S TRUSTS-Ex parte MARKS, re MARKS. [CHAN. The present petitioners were the persons beneficially interested in the funds; the petition was presented in the court of Wood, V.C., and it asked for payment out of both of the funds, and their application in payment of a mortgage upon the another to make, or abstain from making, or altering | pany also took part of the lands comprised in the a will on the assurance that on his death his inten- will of the younger Nicholas Browse; the purchasetion shall be carried into effect, then the court has money was paid into court, and an order was made held the person so engaged to be bound to fulfil his by Wood, V.C. for the investment thereof and payengagement, has held him to take whatever has ment of the dividends. passed to him on the faith of such engagement, merely as a trustee for the purpose of fulfilling his engagement. I do not feel myself called upon to discuss the principle on which these cases rest; such, for instance, as Sellack v. Harris, which is reported in Viner under the title "Contract" (H) 31, and Stick-lands devised by Nicholas Browse the elder. land v. Aldridge, before Lord Eldon, in 9 Ves. 519. They have no application to the present case. There is no question here as to whether those who derive title under the deceased husband are affected by any personal act arising from any assurance given by them; they merely claim what the law gives them. If there had been any principle which would intercept the property in its progress from the testator to them as legatees, their title, no doubt, might have been defeated; but there is nothing, when the property has reached them, which makes it inequitable in them to insist on their full right to the enjoyment of what has been so bequeathed to them. I am of opinion, therefore, that there was no ground for filing this bill, and that it ought to have been dismissed with costs. Solicitors for the plt., Emmet and Son. Solicitor for the defts., T. H. Dixon, agent for Robert H. Daubney, Market Rasen. Saturday, Jan. 7. (Before the LORDS JUSTICES.) Re BROWSE'S TRUSTS. Practice-Purchase-money of lands-Separate funds then have been made. This was a petition for payment of money out of court, which was now mentioned to the Lords Justices for their direction, at the desire of Wood, V.C. The petition stated the will of Nicholas Browse the younger, whereby he devised certain lands and hereditaments upon trust for Sarah Ann Browse, his daughter, and her children; that Nicholas Browse the elder, by his will, had devised certain other lands for the benefit of the said Sarah Ann Browse and her children, upon trusts almost identical with those contained in the will of the said Nicholas Browse the younger. That part of the second-mentioned lands had been taken by the Dartmouth and Torbay Railway Company, and when the company paid the purchase-money into court it was, in pursuance of an order of Stuart, V. C., invested, and directions were given for the payment of the dividends. At a later date the same railway com Wood, V.C., upon hearing the petition, made the order asked for, but his Honour stated that he felt some doubt whether he had jurisdiction to make any order as to the fund derived from the sale of the lands of Nicholas Browse the elder; and further, as the petition sought to deal with two funds, whether, if that ought to be done by one order, such order should not be made by Stuart, V.C., whose order for investment and payment of the dividends was of date prior to his own. He therefore desired that the case should be brought to the attention of the Court of Appeal. Archibald Smith now mentioned the case to their Hayton's Trusts, 10 W. R. 557; 10 L. T. Rep. Re Bilston Curacy, 10 W. R. 516; Their LORDSHIPS were of opinion that it could not have been intended that every matter arising out of purchases by the same railway company should come within the jurisdiction of the same branch of the court; still, if there were no special circumstances to vary it, the general rule ought to be that, where an order had once been made in such a matter, all subsequent orders in the same matter should be made in the same branch of the court as the earlier ones; therefore, the order for payment out of the purchase-moneys of the lands of Nicholas Browse the elder ought to have been made by Stuart, V.C. In the present case, separate orders affecting funds derived from the two different testators had been made by two of the judges of the court; and, in those circumstances, an application which sought to deal with both funds at once ought to have been made to that branch of the court by which the earlier order was made, and the fund, the subject of the later order, ought to have been transferred from the jurisdiction of Wood, V.C. to that of Stuart, V. C.; but now, as an order had been actually made by Wood, V. C., though subject to the present application, the fund which was the subject of Stuart, V. C.'s order might be transferred to the jurisdiction of Wood, V. Č., and the order already made might stand. But their Lordships desired that this opinion should be mentioned to Stuart, V. C., that his Honour's consent might be obtained. Solicitors for the petitioners, Church and Son. Wednesday, Jan. 24. (Before the Lord Chancellor (Cranworth.) The powers of punishment for offences not amounting to Thus, if a commissioner has refused the bankrupt his order of discharge, he cannot sentence him to imprisonment; and vice versa. CHAN.] Ex parte WOOD, re CARTER. [CHAN. This was an appeal from an order of the learned | give an opportunity to the parties to be heard as to commissioner at Birmingham, who had refused the what order ought to be made. bankrupt's order of discharge, and had also sentenced him to be imprisoned for six months. The 3rd rule of the 159th section of the B. A. 1861 provides that if the court shall be of opinion that the bankrupt has been guilty of either of the offences therein specified, the court may either refuse an order of discharge, or may suspend the same, or may grant the same subject to conditions, or may sentence the bankrupt to be imprisoned for any period of time not exceeding one year. De Gex, Q. C., in support of the appeal, contended that the word "or" in the 159th section, could not be read in the conjunctive sense, and that the commissioner had no power to add a sentence of imprisonment to the order for suspending the discharge. In all Acts of Parliament which empowered a tribunal to sentence an offender to two punishments, those two punishments were connected together by the word "and." He referred to the Larceny Act and the Post-office Act. Little, for the official assignee, submitted that the commissioner had power to deal with the conduct of a bankrupt, both in an ordinary and in a criminal sense, under the jurisdiction given to him by the Act of 1861. The 221st section of the B. A. 1861, defined the conduct which constituted a misde meanor by a bankrupt, and it was clear from its terms that it was in the power of the court which Solicitors: Church and Son. Wednesday, Jan. 24. (Before the LORD CHANCELLOR (Cranworth.) Ex parte WOOD, re CARTER. Bankruptcy-Suspension of proceedings by resolution of creditors-B. A. 1861, sects. 110, 136. Where the proceedings in a bankruptcy have been suspended by a resolution of creditors acting under the 110th section of the B. A. 1861, and there is nothing in the resolutions themselves preserving the jurisdiction of the court, there is no power left in the court to order a sale on the petition of an equitable mortgagee presented in the bankruptcy. This was an appeal from Mr. Commissioner Winslow, who had dismissed the petition of the public officer of the Sheffield Union Banking Company, presented in the bankruptcy, under the following circumstances: The bankrupts, W. Carter and C. J. Justin, who were partners in trade, on the 1st June 1864 called a meeting of their creditors, upon which occasion it was agreed that the creditors should take the acceptances of Carter in discharge of their debts, Carter undertaking to deposit with the bank the title-deeds of certain separate property of his own as a security. 6th March 1865 Carter was adjudicated a bankrupt, Several of the bills remained unpaid, and on the and Justin on the following day; and the second petition was annexed to the former. tried him for such offence to sentence him for a term not exceeding three years; besides which the commissioner might refuse or suspend his order of discharge. The 221st section regulated the higher offences, and enabled imprisonment and refusal or suspension of discharge to be awarded to a convicted bankrupt; while the 159th section, dealing with On the 22nd March a meeting of the creditors minor offences, reduced the term of imprisonment was held, at which creditors' assignees were apto one year. He contended that the principle of the pointed, and it was resolved, under the 110th two sections was identical, although the penalties section of the B. A. 1861, that no further proceedwere lessened by the 159th; and that the wordings should be taken in bankruptcy. At a subse"or" must be construed in a conjunctive and quent meeting it was resolved that the proceedcumulative sense. There was nothing in the lan-ings in bankruptcy should be suspended, and the guage of the section which prevented the court from holding that there was a power in the commissioner, and a duty in the commissioner, to examine into the whole conduct of a bankrupt, and to mete out to him any punishment beyond the suspension of the order of discharge which the facts of the case seemed to warrant. joint estate of Carter and Justin and the separate estate of Justin should be wound-up and administered by H. Roberts, one of the creditors' assignees; that the separate creditors of Carter should accept a composition of 6s. in the pound; and that all questions arising in the course of such winding-up and administration as aforesaid should be referred to the Court of Bankruptcy. The LORD CHANCELLOR.-All courts of jurisOn the 11th May Carter accordingly executed a diction are jealous in exercising the right of im- composition-deed, whereby he covenanted to pay a prisoning a subject of the realm. In the present composition of 6s., but the deed contained no release instance a new penal jurisdiction has been created, to him, and no reconveyance of his estate had been and the Court of Bankruptcy, which was not pre-executed by the assignees. The debtors being viously a criminal court, is empowered to im- bankrupts, the deed was not registered under prison. The question is, whether, under the statute, the 194th section. the commissioner has been authorised to add one punishment to another? Here the enactment is that the commissioner may, in certain circumstances, do this thing or that thing, or imprison. I am of opinion that he had a right either to refuse or suspend the order of discharge, or to imprison; but that the Legislature has not authorised him to do both. It is not for me to stretch out the Act and say that the commissioner may refuse the certificate and also imprison. The order appealed against must be discharged. De Gex, Q.C. was not prepared to argue the case upon the merits, and asked that the petition might stand over. The LORD CHANCELLOR.-The case may stand over until the next day of bankruptcy petitions to The petition prayed that the bank might be declared equitable mortgagees in respect of the amount due on the bills, and that Carter's interest in the property might be sold, and the proceeds. applied in payment of costs and of their debt. The learned Commissioner, though he disapproved. of the view that the jurisdiction of the court had been ousted by the resolution, yet felt himself bound by the decision in Ex parte Hastings, re Walker, 11 L. T. Rep. N. S. 160, and dismissed the petition. Sargood, in support of the appeal, contended that the jurisdiction of the court was not gone in this case. There must be some meaning in the phrase "the proceedings shall be suspended." The 110th section of the Act of 1861, after providing for the "suspension," carefully provides that the bankrupt |