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again taken before the magistrate, and the evidence so C. C. R. } REGINA 1. WATTS.

taken and written down by the clerk in the room in 21 Nov. 1863.

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

examine the witnesses ; that his attorney was not Vict. c. 42, s. 17.

there, though he might have been there if he had To be admissile as evidence for the prosecution, under chosen ; that the magistrate then cautioned the pri11 & 12 Vict. c. 42, s. 17, depositions must have been soner, who then signed his own statement, and the taken in the presence of the magistrate and of the magistrate then signed the papers so written as last prismer, and the prisoner must have been at liberty to aforesaid, and that one of the depositions contained CTG*-examine.

in the said last-mentioned paper was the deposition In accordance with the invariable practice of a tendered in evidence for the prosecution. magistrate's court, evidence was given first before the

It was objected for the prisoner that such deposition magistrate in person, the prisoner cross-examining the was not taken in accordance with 11 & 12 Vict. c. 42, seitiges, and the magistrate's clerk taking a mere note s. 17, and was inadmissible accordingly. of their names, and the heads of what they could prove. The prisoner being convicted, the question of its Afterwards, the prisoner and witnesses were taken into admissibility was reserved for the Court. the next room, where a clerk who had not been present

Litller for prisoner. d the previous examination, examined the witnesses

The history of the legislation on the subject is traced from the magistrate's clerk's note, and wrote down their ensions , which they signed: but the prisoner was not in 2 Russell's Reports, 889. Taylor on Evidence, vol. 1,

referring to invited to cross-examine again, and he did not do so. The prisoner and witnesses werc next taken back before

Regina v. Potter, 7 C. & P. 650; and the magistrate, and the evidence, so taken by the clerk, notices that the statute is badly drawn, but that it is

Regina v. Thomas, 7 C. & P. 815, uns reud orer to them, the prisoner not being invited to intended that the Justice should be present when the

cross-examine, and not cross-examining. After being - duly cautioned, the prisoner then signed his own state depositions are taken. It is not stated in that case,

but it is the practice, for two or three clerks to be ment, and the magistrate then signed the deposition so talen:

employed at the same time taking depositions of witHeld, that the deposition so taken, did not fulfil the

nesses when no magistrate is present, and when some requirements of the statute.

policeman may be standing over the prisoner.

[MARTIN, B.-I have often been struck with the The prisoner was tried at the Liverpool Quarter difference in the length of the cross-examinations of Bessions, in May last, on a charge of larceny.

witnesses when before Justices and when before Judges. It was proved at the trial, that one of the witnesses, It is now clear why cross-examination in the former examined before the committing magistrate, was unable cases are so short.] to attend by reason of illness.

In 11 & 12 Vict. c. 42, Schedule M, “Depositions The prosecutors then proposed to read his deposition of Witnesses,” the depositions are to be stated “to be taken before the committing magistrate; and called a taken and sworn before me” (i. e. the magistrate). In witness who proved that the deposition was taken in this case the magistrate has certified what is not the fact. Pcordance with the invariable custom of the magis

He cited, trate's court; that when before the magistrate the

Regina v. Christopher, 1 Den. C. C. 536 ; prisoner was defended by an attorney, who had a full

Regina v. Johnson, 2 C. & K. 394; cpportunity of cross-examining, and who did cross

Candle v. Seymour, 1 Q. B. 889. examine the witnesses; that a note of the evidence given before the committing magistrate, consisting of

Edward James, Q.C., for the Crown, said that he the names of the witnesses, and the heads of what each did not propose to argue the question, as the Liverpool tould

prove, was taken by a clerk to the magistrates; Corporation only wished the question settled. that afterwards the prisoner and the witnesses were

(WIGHTMAN, J.-We understand that in the metro. taken into a room, and that there, another clerk, who politan Police Courts the practice is to take the depoLad not been present at the examination before the sitions in the presence of the magistrate.] magistrates, (zamined the witnesses from the aforesaid [Martin, B.- 1 hardly think it would be necessary note, in the absence of the magistrate, and then wrote that the magistrate should himself write down the dwn the answers, and that the witnesses then signed answers.] the paper so written by the last mentioned clerk; that ERLE, C.J.- We think the depositions badly taken. Like prisoner's attorney was not there, though he might The statute requires the depositions to be taken in the have been, if he had liked, and that the prisoner was presence of the magistrate and the prisoner, and that Lot asked if he would then cross-examine the witnesses, the prisoner shall be at liberty to cross-examine. In and did not cross-examine them.

the present case these requirements have not been That afterwards the prisoner and the witnesses were complied with. It is not for us to lay down regula

she should take it.

tions in general ; suffice it to say these depositions have his fellow committec-men to sell excursion tickets, and been improperly taken.

to pay over the money received for them to an appointed Conviction quashed. officer, both tickets and money belonging to the society:

but the prisoner received no remuneration for his services. C. C. R. } REGINA V. HILLMAX.

The prisoner sold the tickets, but instead of paying over 21 Nov. 1863.

the money, fraudulently appropriated it:Abortion Attempt to Procure Supplying Held, that he was a joint-owner, and not a clerk or Noxious Drug-24 & 25 Vict. c. 100, s. 59.

servant within 24 & 25 Vict. c. 96, s. 68. To convict under section 59 of 24 & 25 Vict. c. 100,

The prisoner was indicted before the Recorder of it is not necessary that it should be the intention of any: Reading, on October 27 last, for that he being embod y besides the party supplying the noxious drug that it ployed as servant to A, B, C, &c. (the other comshould be used to procure a miscarriage.

mittee-men), did, whilst so employed, receive twentyIt is sufficient if the party supplying it himself the said A, B, C, &c. (his masters), and fraudulently

four shillings for in the name and on the account of intended it to be so used.

embezzle the same, &c. The prisoner was indicted at Wilts Quarter Sessions,

The prisoner, together with A, B, C, &c., 4123 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. The jury found that S. C. herself did not intend to for the excursion, and issued tickets to him for that

nominated the prisoner, among others, to sell tickets take the noxious thing in question ; and that no other

purpose—the tickets and the money to be received person, except only the prisoner himself, intended that for them, all belonging to the friendly societies, and

to their various lodges. The prisoner's duty was to The chairman directed a verdict of guilty to be recorded, reserving for the Court the question whether pay over the money received by the sale of the tickets,

to an officer appointed by the committee to receive it or not it was necessary to constitute this offence that some other person besides the prisoner who supplied remuneration for his services.

on account of the societies. The prisoner received no the poison, must intend it to be used to procure a

The prisoner sold the tickets issued to him ; but, miscarriage.

instead of paying over the money to the appointed T. W. Saunders, for the prisoner.

officer, fraudulently appropriated it. The jury found The words of the statute only contemplate a case that the said prisoner was employed by the committee ; where the party procuring, and the party for whom that, while so employed, he received the money menthe stuff is procured, have the same unlawful intent. tioned in the indictment in the name and on account Its words are,—“Whosoever shall supply any poison of the committee, and fraudulently converted it. The or other noxious thing, knowing that the same is in. Recorder thereupon directed a verdict of guilty, subject tended to be unlawfully used or employed with intent to the opinion of the Court whether the prisoner 125 to procure miscarriage.” He referred to section 58. employed "for the purpose, or in the capacity of a

clerk or servant" within the meaning of 24 & 25 Vict

. ERLE, C.J.—The statute is directed against the supplying of a noxious thing, knowing that it is in

c. 96, s. 68 ; and whether, being a member of the

committee, and of one of the societies, and thus a joint tended to be used. Here the prisoner knew that it was

owner of the tickets and money produced by their sale, intended to be used, for he must have known his own

he could lawfully be convicted. It is not necessary that anybody else besides should have the intention. The case is within Pater, for the defence. the words of the Act.

1st. The prisoner was not clerk or servant; not Conviction afirmed. receiving any remuneration, and having no control,

Regina v. May, L. & C. 13 ; 9 W. R. 256 (case of C. C. R. } REGINA V. BREN.

commission agent). 21 Nov. 1863.

2nd. Prisoner was joint owner. Embezzlement Clerk or Servant -- 24 & 25

Harrington, for Crown, cited, Vict. c. 96, s. 68-Friendly Society-Part

Regina v. Proud, 31 L. J. M. C. 71 ; 11 W. R. 602; owner- - Member of Committee.

Regina v. Burgess, 2 N. R. 85; 32 L. J. M. C. 195. Coram-ERLE, C.J., WIGHTMAN, WILLIAMS, KEAT

ERLE, C.J.-We all think that the prisoner, as ING, JJ., Martin, B.

member of the committee and of the societies, Prisoner was member of a joint-committee appointed owner, and not clerk or servant, nor employed for the from among the members of two friendly societies, to purpose, or in the capacity, of clerk or servant. conduct a railway e.ccursion. He was nominated by

Conviction quashei.

intention.

was joint

EQUITY

Lord Chancellor:}

have been subject to the set-off claimed by the remainSCHOLEFIELD V. LOCKWOOD. 6

derman.

The costs of a party unnecessarily scrred with a Mortgage by Husband and Wife-Exoneration

of Wife's Estate Tenant for Life of several petition of appeal, and appearing thereon, ordered to Estates, each Subject to a Mortgage-Reduction

This was an appeal from part of the decree of the of Principal of one Mortgage, Arrears of Master of the Rolls (reported, 1 N. R. 559), where Interest on the other Set-off Judgment- the facts of the case, and the arguments of counsel, Creditor-Costs.

are fully stated. Husband's freehold estates, A (unincumbered), B Hobhouse, Q.C., and Wickens, for the defendant (subject to a mortgage for 1,4001.) and C (subject to a Durant, the appellant. mortgage for 30001.), were settled to the use of husband On the first point, as to the exoneration of Mrs. for life, after his death, to such uses as husband and Dutton's moiety of the mortgaged estate, they rewife should jointly appoint: in default, to the use of ferred to wife for life, and after the death of the survivor of Lancaster v. Evors, 10 Beav. 154; husband and wife, as to one moiety, to the use of hus- Robinson v. Gee, 1 Ves. sen. 251. band in fee, and as to the other moiety, to the use of On the second point, as to the claim to set-off the such persons as wife should by deed, or will appoint, arrears of interest on the 30001. mortgage against the and in default, to the use of wife in fee.

amount by which the 2,4001. principal had been reHusband and wife appointed the estates A and B duced, they referred to (subject to the mortgage for 1,4002.) by way of mortgage Bcavan v. Lord Oxford, 6 De G. M. & G. 492; for 10001. for the benefit of the husband :

Waring v. Coventry, 2 M. & K. 406. Held, (affirming the Master of the Rolls) that this

E. P. Smith (Selwyn, Q.C., with him), for the nous not a nortgage of the wife's estate for the benefit of

plaintiff, cited, her husband, and that there was no equity in her favour

on the first point, to have her moiety exonerated.

Jenkinson v. Harcourt, Kay, 688; The mortgagee of estates A and B entered into posses

2 Jarm. Wills, 608, 609 (3rd ed.); sion, and part of the principal of the 2,4001. mortgages

on the second point, uns paid out of the rents accruing during the lifetime

Hopkinson v. Rolt, 9 H. of L. Ca. 514; of the husband; but the interest on the 30001. mortgage

1 & 2 Vict. c. 110, s. 13. was, during his lifetime, allowed to fall into arrear; before any part of the principal had been paid off, a Baggallay, Q.C., and Pooks, for the defendant Lockjudgment was recovered against the husband, who also wood, took no part in the argument. became insolvent

Hobhouse, Q.C., in reply, on the first point, reHeld, (reversing the Master of the Rolls) that on the

ferred to death of the husband, the charge on the inheritance to the extent by which the principal of the 2,4001. mortgages had and on the second point, to

Astley v. Earl of Tankerville, 3 Br. C. C. 545; been reduced, to which his estate became entitled, was

Gresley v. Adderley, 1 Sw. 573; subject to a right on the part of the remainderman to

Willes v. Greenhill, 29 Beav, 376. set-off the arrears of interest on the 30001. against the amount of principal reduced, to the extent by which the THE LORD CHANCELLOR said, that the mortgages semainderman was damnified by the interest on the for 6001. and 4001., created by the indenture of the 1st 30001. having been permitted to fall into arrear; and of June, 1837, affected the inheritance of the estates that the judgment-creditor of the deceased tenant for comprised in that indenture. The wife, being entitled life, being a mere general assignee of his estate, was under the settlement to a moiety of the inheritance of subject to the same right of set-off on the part of the those estates, subject to the exercise of the power, Tennainderman:

insisted that the mortgage was a transaction for the Semble, if the principal had been paid off before the benefit of the husband alone, and that, to the extent judgment was recovered, the judgment-creditor would to which her estate was damnified by that transaction, have been in the position of a specific assignee of the she was entitled to exoneration out of the moiety tenant for life's charge on the inheritance, and would not limited to the husband. It had long been the settled

VOL. III.

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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 he was also tenant for life under the same settlement, Equity implied was derived from the fact, and only and the interest on the 30001. mortgages on that estate from the fact, that the estate of the wife was charged was suffered to fall into arrear. Under those circumfor the benefit of the husband. If that were not so in stances the remainderman said, “In Equity, you are the case before the Court, if there were no estate of not, as against me, entitled to claim a charge on the the wife which was charged, his Lordship had neither inheritance in respect of surplus rents applied in part authority nor inclination to extend the doctrine. Now payment of the mortgages on estates A and B, unless the mortgages for 6001. and 4001. were created by an and until you have performed your obligation to keep exercise of the joint power of appointment contained down the interest of the mortgage on estate C." As in the settlement, and by that alone. The wife levied between tenant for life and remainderman, it was a no fine, executed no enrolled deed under the statute; duty incumbent on the tenant for life to keep down the mortgage emanated solely and exclusively from the the interest on all the mortgages, and the representapower; and the estate charged was that which was tive of the tenant for life could not be permitted to subject to the power, viz., the entire undivided estate, stand in the place of one mortgagee to the extent of and not the moiety which, by the subsequent limita- the amount of his principal paid off, unless he subtions of the settlement, was given to the wife. The mitted to do equity, and, in accordance with the rule only estate of the wife was that which was limited to of the Court, relieved the remainderman from the her in default of, and subject to, the exercise of the arrears of interest on the other mortgage which the joint power. Her estate did not arise otherwise than tenant for life, in breach of his duty, had permitted subject to the power, and so far as any exercise of the to accumulate. If, at the time when the judgment power did not extend. The joint power was a thing against the tenant for life was recovered, any surplus that entered into the original contract between the rents had been in the hands of the mortgagee in posseshusband and wife upon which the settlement pro- sion, his Lordship should have regarded the judgmentceeded, and was created for the express purpose of creditor as in the position of a specific assignee for value doing that which had been done, viz., of raising money of that surplus or of the principal paid off by

and by mortgage as the husband and wife should appoint. should have held that, as such assignee, he was not The mortgage, therefore, was not a mortgage of the subject to any claim on the part of the remainderwife's estate. From the act of the wife alone the man to set off interest on the other mortgage which mortgagee took nothing, and the interest of the mort- the tenant for life had afterwards allowed to fall into gagee was no part of that estate which the wife singly arrear. But in the present case, it appeared that at had. It had been argued at the bar that that was a the time when the judgment was recovered, no part technical, and not a substantial, distinction ; but it of the principal of the 2,4001. had been paid off;

and was the distinction between (on the one hand) the further, that the tenant for life became insolvent entire undivided estate over which the power extended, before any portion of the rents received by the mortand which was held by the mortgagee under the exer- gagee in possession had been or could have been cise of the power, anterior to the limitations under applied in reduction of the principal. The judginent. which the wife took any estate whatever, and (on the creditor, therefore, could not be regarded as the specife other hand) the moiety of that estate which was given assignee of an existing charge or interest, but merely as to the wife by the posterior limitations, in default of, in the position of a general assignee by way of mortgage and subject to, the exercise of the power. The mort of the estate of the tenant for life; that being 30, gagee took no estate or interest that was limited to the judgment-creditor was subject to all the equities the wife alone. The wife's concurrence with the affecting the tenant for life, and, therefore, subject husband in the exercise of the joint power was con- to the equity claimed by the remainderman to have formable with the intent and purpose of the settlement, the arrears of interest on the 30001. mortgage which and the husband incurred no liability therefrom. The accumulated during the life of Thomas Dutton set mortgage was one in which the wife's estate was not off against the surplus rents applied in part payment included ; and as there was no charge on the wife's of the 2,4001. principal. estate for the benefit of the husband, there could be It was said, however, that no injury had been done no claim to exoneration.

to Mrs. Dutton, no loss sustained by her, by reason of As to the second point, it seemed that the mort. the interest on the 30001. having been allowed to fall gagee of the estates charged with the 2,4001. had into arrear, because the whole value of the estate entered into possession and receipt of the rents; the charged with the 30001. and interest was less than rents exceeded the interest on the mortgages, and to 30001. ; if the fee-simple of the whole estate were not the extent of that excess, belonging as it would to worth 30001., a moiety of the equity of redemption the tenant for life, Mr. Dutton might be considered was valueless, even if there had been no arrears of

directed.

interest, and the accum ulation of arrears was therefore and that such omission had possibly worked injustice, no detriment to Mrs. Dutton, or those claiming under an order for rehearing was made, although more than her. The defendant Durant did not admit that repre. five years had elapsed from the date of the decree. sentation to be true ; he admitted, however, that the estate was not worth 30001, and the existing arrears This was the hearing of a petition praying that a

interest, and therefore he did not claim to redeem ; decree made by Kindersley, V.-C., on the 2nd of but it was said on his behalf, “ The interest in arrear April, 1857, might be varied, and that in order amounts to 9001. ; I cannot redeem without paying thereto the cause might be reheard by his Honour. 3,9001., which is more than the value of the estate ; but The material facts were as follow :if the arrears had been 5001. only, I would have been The original bill in the suit of Buckeridge v. Whalley paid the 3,5001., and therefore to the extent of 5001. I was filed in 1844. The plaintiffs as executors of James am damnified." If no loss had been sustained by the Cramer claimed an equitable charge upon certain remainderman, there could be no right to the set-off; freeholds belonging to the defendant William Whalley, the loss must be actually incurred in order to be the and sought to realise it. subject of set-off; and on that point inquiries must be Pending this suit William Whalley died.

A supplemental bill was thereupon filed by the His Lordship, therefore, would declare that in case plaintiffs against Edward Whalley, as executor of upon inquiry it should appear that loss had been William, and against others who together with Edward sustained by the appointees of Mrs. Dutton by were under William's will interested in the freeholds, Teason of the interest on the 30001. having been for relief similar to that sought against William, and allowed to fall into arrear during the lifetime of for administration of his estate, if necessary. Thomas Dutton, then, to the extent of that loss, the William had been James Cramer's solicitor, and it defendant Durant had a right of set-off against the

was alleged that a large amount of costs was due to claim of the judgment-creditor upon the amount of his estate for services rendered by him in that the surplus rents applied during the life of Thomas capacity. Dutton in part payment of the principal money's By the decree of Kindersley, V.-C., made on the 2nd owing on the 2,4001. mortgages ; and direct inquiries of April, 1857, the charges claimed by the plaintiffs for the purpose of ascertaining what was due for were established, the usual accounts directed, and it principal and interest on the 30001. mortgage at the was ordered that William Whalley's estate should be time of the death of Thomas Dutton ; what was the credited

with the amount of any costs that might be Falue at the same time of the estate charged with justly due to it. that mortgage ; and whether any, and what, loss had In computing this amount the Chief Clerk found been sustained by the defendant Durant by reason of that a settlement had been come to between William the interest on that mortgage having been permitted to Whalley and James Cramer, on the 1st of March, fall into arrear during the lifetime of Thomas Dutton. 1833, and the calculation contained in his certificate

Baggallay, Q.c., asked for his Lordship's direction started from that settlement. as to the dofendant Lockwood's costs of the appeal ;

The certificate was confirmed by the Vice-Chancellor, he had been served with the petition of appeal, was in but on appeal to the Lords Justices, their Lordships

, the position of having a fund in hand for which he

on the 29th of May, 1861, held that as the decree had to account

, and was willing to pay the same to contained no direction in regard to settled accounts, it whomsoever the Court held to be entitled thereto ; it

was not competent to the Chief Clerk to admit them, **3 indifferent to him to whom the money was paid, and with this declaration they remitted the matter to and the learned counsel had consequently not felt him- Chambers. sof justified in taking any part in the argument.

In March, 1862, the defendant, Edward Whalley,

applied for leave to present a petition for rehearing, in Tue LORD CHANCELLOR said that the best method order that a direction not to disturb settled accounts of preventing unnecessary parties being brought before might be inserted in the decree. The Lord Chancellor the Court of Appeal would be to make their costs dispensed with the signature of two counsel

, but required payable by the party bringing them there ; and accord that one at least should sign the petition. It was ingly ordered that the defendant Lockwood's costs of accordingly signed and an order for rehearing was, on the appeal should be borne by the appellant.

the 11th of June, 1863, made on an ex parte applica

tion by the defendant Edward Whalley, but such order Lord Chancellor.

} BUCKERIDGE v. WHALLEY. was subsequently discharged on the ground that the 7 Dec. 1863.

petition ought to have been served upon the parties

Since that time the PracticeRehearingEnlargement of Time-concerned (see 2 N. R. 404). Cons. Ord. XXXI. r. 1.

plaintiffs had been duly served.

The defendant, Edward Whalley, now appeared, in Where it appeared that a direction to regard settled person, in support of the petition, and cited, accounts had inadvertently been omitted from a decree, Cons. Ord. XXXI. r. 1;

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