C. C. R. REGINA 2. WATTS. 21 Nov. 1863. again taken before the magistrate, and the evidence so taken and written down by the clerk in the room in the absence of the magistrate, was read over to them; Depositions-Magistrates-Practice-11 & 12 that the prisoner was not then asked if he would cross Vict. c. 42, s. 17. To be admissible as evidence for the prosecution, under 11 & 12 Vict. c. 42, s. 17, depositions must have been taken in the presence of the magistrate and of the prisoner, and the prisoner must have been at liberty to cross-examine. In accordance with the invariable practice of a magistrate's court, evidence was given first before the magistrate in person, the prisoner cross-examining the witnesses, and the magistrate's clerk taking a mere note of their names, and the heads of what they could prove. Afterwards, the prisoner and witnesses were taken into the next room, where a clerk who had not been present at the previous examination, examined the witnesses from the magistrate's clerk's note, and wrote down their answers, which they signed: but the prisoner was not invited to cross-examine again, and he did not do so. The prisoner and witnesses were next taken back before the magistrate, and the evidence, so taken by the clerk, was read over to them, the prisoner not being invited to cross-examine, and not cross-examining. After being duly cautioned, the prisoner then signed his own statement, and the magistrate then signed the deposition so taken: Held, that the deposition so taken, did not fulfil the requirements of the statute. The prisoner was tried at the Liverpool Quarter Sessions, in May last, on a charge of larceny. It was proved at the trial, that one of the witnesses, examined before the committing magistrate, was unable to attend by reason of illness. The prosecutors then proposed to read his deposition taken before the committing magistrate; and called a witness who proved that the deposition was taken in cordance with the invariable custom of the magistrate's court; that when before the magistrate the prisoner was defended by an attorney, who had a full pportunity of cross-examining, and who did crossexamine the witnesses; that a note of the evidence given before the committing magistrate, consisting of the names of the witnesses, and the heads of what each uld prove, was taken by a clerk to the magistrates; that afterwards the prisoner and the witnesses were taken into a room, and that there, another clerk, who ad not been present at the examination before the magistrates, examined the witnesses from the aforesaid nate, in the absence of the magistrate, and then wrote in the answers, and that the witnesses then signed The paper so written by the last mentioned clerk; that e prisoner's attorney was not there, though he might ave been, if he had liked, and that the prisoner was fact asked if he would then cross-examine the witnesses, and did not cross-examine them. That afterwards the prisoner and the witnesses were examine the witnesses; that his attorney was not there, though he might have been there if he had chosen; that the magistrate then cautioned the prisoner, who then signed his own statement, and the magistrate then signed the papers so written as last aforesaid, and that one of the depositions contained in the said last-mentioned paper was the deposition tendered in evidence for the prosecution. It was objected for the prisoner that such deposition was not taken in accordance with 11 & 12 Vict. c. 42, s. 17, and was inadmissible accordingly. The prisoner being convicted, the question of its admissibility was reserved for the Court. Littler for prisoner. The history of the legislation on the subject is traced in 2 Russell's Reports, 889. Taylor on Evidence, vol. 1, referring to Regina v. Potter, 7 C. & P. 650; and notices that the statute is badly drawn, but that it is intended that the Justice should be present when the depositions are taken. It is not stated in that case, but it is the practice, for two or three clerks to be employed at the same time taking depositions of witnesses when no magistrate is present, and when some policeman may be standing over the prisoner. Regina v. Thomas, 7 C. & P. 815, [MARTIN, B.-I have often been struck with the difference in the length of the cross-examinations of witnesses when before Justices and when before Judges. It is now clear why cross-examination in the former cases are so short.] In 11 & 12 Vict. c. 42, Schedule M, "Depositions of Witnesses," the depositions are to be stated "to be taken and sworn before me" (i. e. the magistrate). In this case the magistrate has certified what is not the fact. He cited, Regina v. Christopher, 1 Den. C. C. 536; Edward James, Q.C., for the Crown, said that he did not propose to argue the question, as the Liverpool Corporation only wished the question settled. [WIGHTMAN, J.-We understand that in the metropolitan Police Courts the practice is to take the depositions in the presence of the magistrate.] [MARTIN, B.-I hardly think it would be necessary that the magistrate should himself write down the answers.] ERLE, C.J.—We think the depositions badly taken. The statute requires the depositions to be taken in the presence of the magistrate and the prisoner, and that the prisoner shall be at liberty to cross-examine. In the present case these requirements have not been complied with. It is not for us to lay down regula Noxious Drug-24 & 25 Vict. c. 100, s. 59. To convict under section 59 of 24 & 25 Vict. c. 100, it is not necessary that it should be the intention of any. body besides the party supplying the noxious drug that it should be used to procure a miscarriage. his fellow committec-men to sell excursion tickets, and to pay over the money received for them to an appointed officer, both tickets and money belonging to the society: but the prisoner received no remuneration for his services. The prisoner sold the tickets, but instead of paying over the money, fraudulently appropriated it:— Held, that he was a joint-owner, and not a clerk or servant within 24 & 25 Vict. c. 96, s. 68. The prisoner was indicted before the Recorder of Reading, on October 27 last, for that he being employed as servant to A, B, C, &c. (the other committee-men), did, whilst so employed, receive twentyfour shillings for in the name and on the account of It is sufficient if the party supplying it himself the said A, B, C, &c. (his masters), and fraudulently intended it to be so used. The jury found that S. C. herself did not intend to take the noxious thing in question; and that no other person, except only the prisoner himself, intended that embezzle the same, &c. The prisoner was indicted at Wilts Quarter Sessions, The prisoner, together with A, B, C, &c., was 30th June last, under the above section, for unlaw-member of a committee, formed from two friendly fully procuring and supplying a certain noxious thing, societies, to one of which he belonged, for the purpose knowing that the same was intended to be used by of conducting a railway excursion. The committee S. C. to procure her miscarriage. nominated the prisoner, among others, to sell tickets for the excursion, and issued tickets to him for that purpose the tickets and the money to be received for them, all belonging to the friendly societies, and to their various lodges. The prisoner's duty was to pay over the money received by the sale of the tickets, to an officer appointed by the committee to receive it remuneration for his services. on account of the societies. The prisoner received no she should take it. The chairman directed a verdict of guilty to be recorded, reserving for the Court the question whether or not it was necessary to constitute this offence that some other person besides the prisoner who supplied the poison, must intend it to be used to procure a miscarriage. T. W. Saunders, for the prisoner. The words of the statute only contemplate a case where the party procuring, and the party for whom the stuff is procured, have the same unlawful intent. Its words are,—“Whosoever shall supply any poison or other noxious thing, knowing that the same is intended to be unlawfully used or employed with intent to procure miscarriage." He referred to section 58. ERLE, C.J.-The statute is directed against the supplying of a noxious thing, knowing that it is intended to be used. Here the prisoner knew that it was intended to be used, for he must have known his own intention. It is not necessary that anybody else besides should have the intention. The case is within the words of the Act. The prisoner sold the tickets issued to him; but, instead of paying over the money to the appointed officer, fraudulently appropriated it. The jury found that the said prisoner was employed by the committee; that, while so employed, he received the money mentioned in the indictment in the name and on account of the committee, and fraudulently converted it. The Recorder thereupon directed a verdict of guilty, subject to the opinion of the Court whether the prisoner was employed "for the purpose, or in the capacity of a clerk or servant" within the meaning of 24 & 25 Vict. c. 96, s. 68; and whether, being a member of the committee, and of one of the societies, and thus a joint owner of the tickets and money produced by their sale, he could lawfully be convicted. Pater, for the defence. 1st. The prisoner was not clerk or servant; not Conviction affirmed. receiving any remuneration, and having no control, Regina v. May, L. & C. 13; 9 W. R. 256 (case of commission agent). REGINA V. BREN. Embezzlement - Clerk or Servant-24 & 25 Coram-ERLE, C.J., WIGHTMAN, WILLIAMS, KEAT- Prisoner was member of a joint-committee appointed from among the members of two friendly societies, to conduct a railway excursion. He was nominated by 12 DEC. 1863.] 177 EQUITY. Lord Chancellor.} SCHOLEFIELD V. LOCKWOOD. 5,6 Nov. 1863. Mortgage by Husband and Wife-Exoneration of Wife's Estate-Tenant for Life of several Estates, each Subject to a Mortgage-Reduction of Principal of one Mortgage, Arrears of Interest on the other-Set-off-JudgmentCreditor-Costs. Husband's freehold estates, A (unincumbered), B (subject to a mortgage for 1,4007.) and C (subject to a mortgage for 30007.), were settled to the use of husband for life, after his death, to such uses as husband and wife should jointly appoint: in default, to the use of wife for life, and after the death of the survivor of husband and wife, as to one moiety, to the use of husband in fee, and as to the other moiety, to the use of such persons as wife should by deed or will appoint, the use of wife in fee. and in default, Husband and wife appointed the estates A and B (subject to the mortgage for 1,4007.) by way of mortgage for 10001. for the benefit of the husband: Held, (affirming the Master of the Rolls) that this was not a mortgage of the wife's estate for the benefit of her husband, and that there was no equity in her favour to have her moiety exonerated. The mortgagee of estates A and B entered into possession, and part of the principal of the 2,4001. mortgages was paid out of the rents accruing during the lifetime of the husband; but the interest on the 30001. mortgage was, during his lifetime, allowed to fall into arrear; before any part of the principal had been paid off, a judgment was recovered against the husband, who also became insolvent: Held, (reversing the Master of the Rolls) that on the death of the husband, the charge on the inheritance to the extent by which the principal of the 2,4001. mortgages had been reduced, to which his estate became entitled, was subject to a right on the part of the remainderman to set-off the arrears of interest on the 30001. against the amount of principal reduced, to the extent by which the remainderman was damnified by the interest on the 3000l. having been permitted to fall into arrear; and that the judgment-creditor of the deceased tenant for life, being a mere general assignee of his estate, was subject to the same right of set-off on the part of the Semble, if the principal had been paid off before the judgment was recovered, the judgment-creditor would have been in the position of a specific assignee of the tenant for life's charge on the inheritance, and would not VOL. III. have been subject to the sct-off claimed by the remain- The costs of a party unnecessarily served with a This was an appeal from part of the decree of the Hobhouse, Q.C., and Wickens, for the defendant On the first point, as to the exoneration of Mrs. Lancaster v. Evors, 10 Beav. 154; On the second point, as to the claim to set-off the Beavan v. Lord Oxford, 6 De G. M. & G. 492; E. F. Smith (Selwyn, Q.C., with him), for the plaintiff, cited, on the first point, Jenkinson v. Harcourt, Kay, 688; 2 Jarm. Wills, 608, 609 (3rd ed.); on the second point, Hopkinson v. Rolt, 9 H. of L. Ca. 514; Baggallay, Q.C., and Fooks, for the defendant Lockwood, took no part in the argument. Hobhouse, Q.C., in reply, on the first point, referred to Astley v. Earl of Tankerville, 3 Br. C. C. 545; and on the second point, to Gresley v. Adderley, 1 Sw. 573; THE LORD CHANCELLOR said, that the mortgages for 6001. and 4007., created by the indenture of the 1st of June, 1837, affected the inheritance of the estates comprised in that indenture. The wife, being entitled under the settlement to a moiety of the inheritance of insisted that the mortgage was a transaction for the those estates, subject to the exercise of the power, benefit of the husband alone, and that, to the extent to which her estate was damnified by that transaction, she was entitled to exoneration out of the moiety limited to the husband. It had long been the settled I law of the Court that, if the wife's estate was charged as having paid off part of the principal of the mortfor the debts of the husband, she was entitled to have | gages, "and in an ordinary case would be entitled to that estate exonerated, the wife being regarded as a stand in the place of the mortgagees as against the surety for the husband, and entitled to all the rights inheritance. But there was another estate of which of a surety. But the contract of suretyship which Equity implied was derived from the fact, and only from the fact, that the estate of the wife was charged for the benefit of the husband. If that were not so in the case before the Court, if there were no estate of the wife which was charged, his Lordship had neither authority nor inclination to extend the doctrine. Now the mortgages for 6007. and 4007. were created by an exercise of the joint power of appointment contained in the settlement, and by that alone. The wife levied no fine, executed no enrolled deed under the statute; the mortgage emanated solely and exclusively from the power; and the estate charged was that which was subject to the power, viz., the entire undivided estate, and not the moiety which, by the subsequent limitations of the settlement, was given to the wife. The only estate of the wife was that which was limited to her in default of, and subject to, the exercise of the joint power. Her estate did not arise otherwise than subject to the power, and so far as any exercise of the power did not extend. The joint power was a thing that entered into the original contract between the husband and wife upon which the settlement proceeded, and was created for the express purpose of doing that which had been done, viz., of raising money by mortgage as the husband and wife should appoint. The mortgage, therefore, was not a mortgage of the wife's estate. From the act of the wife alone the mortgagee took nothing, and the interest of the mortgagee was no part of that estate which the wife singly had. It had been argued at the bar that that was a technical, and not a substantial, distinction; but it was the distinction between (on the one hand) the entire undivided estate over which the power extended, and which was held by the mortgagee under the exercise of the power, anterior to the limitations under which the wife took any estate whatever, and (on the other hand) the moiety of that estate which was given to the wife by the posterior limitations, in default of, and subject to, the exercise of the power. The mortgagee took no estate or interest that was limited to the wife alone. The wife's concurrence with the husband in the exercise of the joint power was conformable with the intent and purpose of the settlement, and the husband incurred no liability therefrom. The mortgage was one in which the wife's estate was not included; and as there was no charge on the wife's estate for the benefit of the husband, there could be no claim to exoneration. As to the second point, it seemed that the mortgagee of the estates charged with the 2,4007. had entered into possession and receipt of the rents; the rents exceeded the interest on the mortgages, and to the extent of that excess, belonging as it would to the tenant for life, Mr. Dutton might be considered he was also tenant for life under the same settlement, and the interest on the 30007. mortgages on that estate was suffered to fall into arrear. Under those circumstances the remainderman said, "In Equity, you are not, as against me, entitled to claim a charge on the inheritance in respect of surplus rents applied in part payment of the mortgages on estates A and B, unless and until you have performed your obligation to keep down the interest of the mortgage on estate C." As between tenant for life and remainderman, it was a duty incumbent on the tenant for life to keep down the interest on all the mortgages, and the representative of the tenant for life could not be permitted to stand in the place of one mortgagee to the extent of the amount of his principal paid off, unless he submitted to do equity, and, in accordance with the rule of the Court, relieved the remainderman from the arrears of interest on the other mortgage which the tenant for life, in breach of his duty, had permitted to accumulate. If, at the time when the judgment against the tenant for life was recovered, any surplus rents had been in the hands of the mortgagee in possession, his Lordship should have regarded the judgmentcreditor as in the position of a specific assignee for value of that surplus or of the principal paid off by it, and should have held that, as such assignee, he was not subject to any claim on the part of the remainderman to set off interest on the other mortgage which the tenant for life had afterwards allowed to fall into arrear. But in the present case, it appeared that at the time when the judgment was recovered, no part of the principal of the 2,4007. had been paid off; and further, that the tenant for life became insolvent before any portion of the rents received by the mortgagee in possession had been or could have been applied in reduction of the principal. The judginentcreditor, therefore, could not be regarded as the specifie assignee of an existing charge or interest, but merely as in the position of a general assignee by way of mortgage of the estate of the tenant for life; that being so, the judgment-creditor was subject to all the equities affecting the tenant for life, and, therefore, subject to the equity claimed by the remainderman to have the arrears of interest on the 30007. mortgage which accumulated during the life of Thomas Dutton set off against the surplus rents applied in part payment of the 2, 4007. principal. It was said, however, that no injury had been done to Mrs. Dutton, no loss sustained by her, by reason of the interest on the 30007. having been allowed to fall into arrear, because the whole value of the estate charged with the 3000l. and interest was less than 30007.; if the fee-simple of the whole estate were not worth 30007., a moiety of the equity of redemption was valueless, even if there had been no arrears of interest, and the accumulation of arrears was therefore no detriment to Mrs. Dutton, or those claiming under her. The defendant Durant did not admit that representation to be true; he admitted, however, that the estate was not worth 30007. and the existing arrears of interest, and therefore he did not claim to redeem; but it was said on his behalf, "The interest in arrear amounts to 9007.; I cannot redeem without paying 3,9001, which is more than the value of the estate; but if the arrears had been 5007. only, I would have been paid the 3,5007., and therefore to the extent of 500%. I am damnified." If no loss had been sustained by the remainderman, there could be no right to the set-off; the loss must be actually incurred in order to be the subject of set-off; and on that point inquiries must be directed. His Lordship, therefore, would declare that in case upon inquiry it should appear that loss had been sustained by the appointees of Mrs. Dutton by reason of the interest on the 30007. having been allowed to fall into arrear during the lifetime of Thomas Dutton, then, to the extent of that loss, the defendant Durant had a right of set-off against the claim of the judgment-creditor upon the amount of the surplus rents applied during the life of Thomas Dutton in part payment of the principal money's owing on the 2,4007. mortgages; and direct inquiries for the purpose of ascertaining what was due for principal and interest on the 30007. mortgage at the time of the death of Thomas Dutton; what was the value at the same time of the estate charged with that mortgage; and whether any, and what, loss had been sustained by the defendant Durant by reason of the interest on that mortgage having been permitted to fall into arrear during the lifetime of Thomas Dutton. Baggallay, Q.C., asked for his Lordship's direction as to the defendant Lockwood's costs of the appeal ; he had been served with the petition of appeal, was in the position of having a fund in hand for which he had to account, and was willing to pay the same to whomsoever the Court held to be entitled thereto; it was indifferent to him to whom the money was paid, and the learned counsel had consequently not felt himself justified in taking any part in the argument. THE LORD CHANCELLOR said that the best method of preventing unnecessary parties being brought before the Court of Appeal would be to make their costs payable by the party bringing them there; and accordingly ordered that the defendant Lockwood's costs of the appeal should be borne by the appellant. and that such omission had possibly worked injustice, an order for rehearing was made, although more than five years had elapsed from the date of the decree. This was the hearing of a petition praying that a decree made by Kindersley, V.-C., on the 2nd of April, 1857, might be varied, and that in order thereto the cause might be reheard by his Honour. The material facts were as follow: The original bill in the suit of Buckeridge v. Whalley was filed in 1844. The plaintiffs as executors of James Cramer claimed an equitable charge upon certain freeholds belonging to the defendant William Whalley, and sought to realise it. Pending this suit William Whalley died. A supplemental bill was thereupon filed by the plaintiffs against Edward Whalley, as executor of William, and against others who together with Edward were under William's will interested in the freeholds, for relief similar to that sought against William, and for administration of his estate, if necessary. William had been James Cramer's solicitor, and it was alleged that a large amount of costs was due to his estate for services rendered by him in that capacity. By the decree of Kindersley, V.-C., made on the 2nd of April, 1857, the charges claimed by the plaintiffs were established, the usual accounts directed, and it was ordered that William Whalley's estate should be credited with the amount of any costs that might be justly due to it. In computing this amount the Chief Clerk found that a settlement had been come to between William Whalley and James Cramer, on the 1st of March, 1833, and the calculation contained in his certificate started from that settlement. The certificate was confirmed by the Vice-Chancellor, but on appeal to the Lords Justices, their Lordships, on the 29th of May, 1861, held that as the decree contained no direction in regard to settled accounts, it was not competent to the Chief Clerk to admit them, and with this declaration they remitted the matter to Chambers. In March, 1862, the defendant, Edward Whalley, applied for leave to present a petition for rehearing, in order that a direction not to disturb settled accounts might be inserted in the decree. The Lord Chancellor dispensed with the signature of two counsel, but required that one at least should sign the petition. It was accordingly signed and an order for rehearing was, on the 11th of June, 1863, made on an ex parte application by the defendant Edward Whalley, but such order BUCKERIDGE v. WHALLEY. was subsequently discharged on the ground that the Practice-Rehearing-Enlargement of Time-concerned (see 2 N. R. 404). Since that time the Lord Chancellor. 7 DEC. 1863. Cons. Ord. XXXI. r. 1. Where it appeared that a direction to regard settled accounts had inadvertently been omitted from a decree, petition ought to have been served upon the parties plaintiffs had been duly served. The defendant, Edward Whalley, now appeared, in person, in support of the petition, and cited, Cons. Ord. XXXI. r. 1; |