effects whatsoever and wheresoever and of what nature or kind soever and every part and parcel thereof (subject to the payment of his debts and to the payment of an annuity of 307.) unto and to the use and behoof of his sister Elizabeth Watham, her heirs and assigns for ever. The present Duke of Leeds is absolutely entitled in his own right to the fee simple and equity of redemption of the said mortgaged premises, subject to the said 25,000l. The executors of the mortgagee having called for payment, the Duke of Leeds sold the premises for 39,000l. to Thomas Evans and William Strutt in equal moieties. The mortgagee left his sister, Elizabeth Watham, and his niece, the infant Georgiana Elizabeth Munday, his coheiresses at law.

The Master farther certified, that he was of opinion, that the legal estate of and in the said premises passed by the residuary devisee in the will of James Mansfield Chadwicke to his devisee: but in case it did not so pass, but descended as undisposed of, then he found, that the infant was an infant trustee as to one moiety for the said purchasers within the intent and meaning of the act. *The purchasers having consulted two conveyancers, [* 349] who advised, that the legal estate did not pass by the will of the mortgagee, the petition was presented by the Duke of Leeds, in order to have the opinion of the Court upon the point.

Mr. Richards, who with the Attorney General [Sir John Scott], was to support the Master's opinion, cited Ex parte Bowes, stated by Mr. Sanders in a note to Casborne v. Scarfe, 1 Atk. 605. 3d edition.

The Solicitor General [Sir John Mitford] and Mr. Roupel were to have argued, that the legal estate in the mortgaged premises did not pass by the devise: the former was not present: but Mr. Roupel having mentioned Lord Hardwicke's opinion to that effect in Casborne v. Scarfe, (a) and the Attorney General admitting, he could not support the devise, the order was made; declaring, that the infant was a trustee and mortgagee within the act; and ordering her to convey, so far as any legal estate in the mortgaged premises descended to her (1).

THE intimation, conveyed in the report of the principal case, that the learned judge, (Lord Alvanley,) had "no doubt" about it, is corrected in the note to 5 Ves. 341. The rule now established is, that by a devise in general terms, a trust or mortgage estate will commonly pass; but that it will not do so where an intent appears to treat the subject of devise in a manner inconsistent with the nature of trust property; or where it can be collected from any expressions in the will, that the testator did not intend to pass trust estate. Lord Braybrooke v. Inskip, 8 Ves. 435; Er parte Morgan, 10 Ves. 101; Wall v. Bright, 1 Jac. & Walk. 498.

(a) But see post, Braybroke v. Inskip, 8 V. 436, where Lord Eldon says, he did not believe Lord Hardwicke said what was attributed to him in that case.

(1) See Mr. Butler's note: Co. Lit. 203, b. note 96. This point after much fluctuation, post, Ex parte Sergison, vol. iv. 147; The Attorney General v. Buller, v. 339; Er parte Brettell, vi. 577; viii. 276, is in Lord Braybroke v. Inskip, viii. 417, thus settled upon consideration of all the cases; that a trust estate will pass by a general devise, unless the contrary intention can be collected from expres

GEDGE, Ex parte.

[1797, MARCH 30.]

CREDITOR by compromising his debt after having struck a docket forfeits the debt.

THE petitioner after having struck a docket compromised his debt by receiving bills of exchange indorsed to him by the debtor; against whom a commission of bankruptcy issued about a week afterwards upon the debt of another creditor. Upon the application of the solicitor for the assignees under that commission the petitioner delivered up the bills, he had received, and applied to prove his debt under the commission: but the commissioners refused to admit the proof on the ground, that he had forfeited his debt under the statute 5 Geo. II. c. 30, $ 24; upon which this petition was presented.

Mr. Richards, for the petition, said, that this is a penal act; and ought to be construed strictly. The statute speaks of a compromise after a commission issued: in this instance nothing farther was done than striking a docket.

]*350]

*Mr. Leach, for the assignees, cited Ex parte Thompson (ante, Vol. I. 157).

Lord CHANCELLOR [LOUGHBOROUGH]. I am very glad, there is such a case. It is a stronger case than the present: because it appears, it was a mistake: and nothing could have been done upon the docket. All the mischief follows immediately upon striking the docket. By striking a docket they gain to themselves four days to traffic. The petition must be dismissed with costs (1).

SEE the 8th section of the consolidated Bankrupt Act, 6 Geo. IV. c. 16, as to the forfeiture incurred by a creditor who, after having struck a docket against his debtor, compounds with him.

MOORE v. BOOTH.

[1797, APRIL 26, 27.]

A PARTY attending an arbitrator under an order of the Court is privileged from arrest. (a)

By a decree made in this cause at the Rolls by consent all matters in dispute were referred to an arbitrator; whose award was to be final, provided the same should be delivered in writing and signed

sions in the will or purposes or objects of the testator. Ex parte Morgan, vol. x. 101; Wall v. Bright, 1 Jac. & Walk, 494; Thompson v. Grant, 4 Madd. 438; Silvester v. Jarman, 10 Pri. 78.

(1) This case over-ruled. See the note, ante, vol. i. 158.

(a) As to privilege from arrest, see 1 Smith, Practice, 389-391; Orchard's Case, 5 Russ. 159.

by him on or before the 28th of November, 1796; and it was ordered, that all parties should attend the arbitrator from time to time, as he should direct; and that all books, papers and writings, in the custody of the Master or any of the parties relating to the matters in question should be produced before the arbitrator, as he should direct; to be ascertained by the oath of the respective parties producing the same, and the parties or any other persons were to be examined upon interrogatories and otherwise, as the arbitrator should direct; and for that purpose were to be sworn before the Master. The time appointed for making the award was enlarged by order to the 3d of May, 1797.

The Defendant Edward Aylett attended the arbitrator by his appointment on the 22d of April with his box and papers, and finished his examination; when the arbitrator directed him to swear to his examination before the Master at the Public Office in Southampton buildings, and afterwards to return and leave such examination with the arbitrator, with the said box and papers and the key of such box. Aylett went immediately to the Public Office in Southampton Buildings, swore to his examination, and immediately returned to the arbitrator's chambers with a message

* from the Master, that he would keep the papers and ex- [*351] amination, till the arbitrator's clerk should call for them. Aylett was on his return from the arbitrator's chambers arrested in Lincoln's Inn in an action upon the case in the Court of Common Pleas for 381. and a detainer was lodged against him under an attachment issuing out of this Court for not paying the sum of 1027. 17s. 3d.

The Attorney General [Sir John Scott] and Mr. Alcock moved, that he might be discharged, as within the privilege; the order being compulsory and the cause not being out of Court. They cited Hetley's Case, in the Exchequer, 1788. Com. Dig. tit. Privilege (1).

Solicitor General [Sir John Mitford], contra, insisted, that the privilege with regard to the party himself was confined to the hearing of the cause, and did not extend to an attendance before the Master (2).

(1) According to the Minute Book of the Court of Exchequer, a rule to show cause was granted in Hetley's case: but the event does not appear. The reporter has been informed, that he was discharged by consent; the point being given up, and the attorney submitting to pay the costs.

(2) Post, Bromley v. Holland, vol. v. 2; Ex parte Jackson, xv. 116. The privilege extends to attendance before the Masters: Ex parte Ledwich, viii. 598; Sidgier v. Birch, ix. 69; Franklin v. Colquhoun, 1 Madd. 580: on Commissioners of Bankruptcy: Post, Ex parte Parker, 554; Ex parte Hawkins, iv. 691; vi. 783; Ex parte King, Ex parte Donlevy, vii. 312, 317; Ogle's Case, xi. 556; Ex parte Jackson, xv. 116; Ex parte Russell, xix. 163; 1 Rose Bank. Cas. 278; Er parte Ross, 1 Rose, 260; Ex parte Byne, 1 Ves. & Bea. 316; List's Case, 2 Ves. & Bea. 373; Ex parte Bryant, 1 Madd. 49; and to a solicitor attending his client's case: post, Ex parte Ledwich, viii. 598; Gascoyne's Case, xiv. 183; Castle's Case, xvi. 412. A Bankrupt, arrested under an escape-warrant on his return from surrendering under an order for liberty to surrender after the time prescribed

Lord CHANCELLOR [LOUGHBOROUGH]. With regard to the practice of this Court it must have happened in some instance or other, so as to have created a settled opinion upon it, whether the privilege extends to attendance upon the Master. There is a very considerable inconvenience, if no privilege is allowed; for if the Court makes an order to attend to swear an examination, the only way of enforcing that is by ordering, that if he does not attend, he shall be committed; but the order may as well be for his being committed, if he is certain of being arrested. I am told, it is understood at Serjeants' Inn, that parties attending at the Judge's chambers are always protected.

April 27th. The Lord CHANCELLOR said, he had found in his own notes of practice the very point decided; that the privilege extended to the case of a party attending an arbitrator under an order of the Court.

The Solicitor General admitted, that upon looking into it he could not resist the motion (1).

ALL parties attending, bona fide, in any court of justice whatever, whether upon a suit concerning themselves, or one in which their testimony is required; and whether compelled by process, or not, are entitled to protection from arrest, both in going to and returning from such attendance. Bromley v. Holland, 5 Ves. 2; Ex parte Jackson, 15 Ves. 116; Ex parte King, 7 Ves. 314; Sidgier v. Birch, 9 Ves. 69.

[* 352]

LEGARD v. JOHNSON.

[1797, FEB. 27; MARCH 1, 2; MAY 12.]

THE Spiritual Court has exclusive cognizance of the rights and duties arising from the state of marriage; a Court of Equity therefore has no jurisdiction upon a contract for separation between husband and wife simply; much less, where it will affect a purchaser or creditor: but the jurisdiction holds in special cases; as where a third party covenants to indemnify the husband against the wife's debts; or a fortune accrues to the wife after separation; or the property is the subject of a trust. (a)

By a settlement previous to the marriage of Anthony Hodges and Anna Sophia Aston, dated the 15th of June, 1782, Henry Aston, father of Anna Sophia, charged certain manors and hereditaments by the statute, was not discharged: Ex parte Johnson, post, xiii. 36: nor will his surrender within the time protect him from that process. Anderson v. Hampton, 1 Barn. & Ald. 308; Bottrell's Case, post, xiv. 41, n.

(1) Ricketts v. Gurney, 7 Pri. 699.

(a) How the Court will decree to a wife a suitable maintenance out of an equitable property belonging to her. See, ante, note (d) to Ball v. Montgomery, 2 V. 191. It has often been questioned, whether deeds of separation between husband and wife, through the intervention of trustees, ought not to be held utterly void. 2 Story, Eq. Jur. § 1427; Westmeath v. Salisbury, 5 Bligh, N. S. 356; S. C. 1 Dav. & Cl. 519; and the exquisite judgment of Lord Stowell in Evans v. Evans, 1 Hagg. Consist. 36; People v. Mercein, 8 Paige, 47. But the authorities have gone too far to enable Courts of Equity to adopt this principle. Ibid, Jones v. Waite, 5 Bing. N. C. 341. The distinctions which have been established on the

with the sum of 4000l. for her marriage portion; and directed that sum to be raised immediately after the marriage, and paid to Sir John Legard and Henry Hervey Aston for the purposes after mentioned and in consideration of the marriage and the said portion Anthony Hodges covenanted, that he would after the end of three years from the solemnization of the said marriage set apart and appropriate as a fund towards raising the sum of 10,000l. one third part of the clear yearly or other rents, issues, profits and proceeds, arising from the several estates and plantations, to which the said Anthony Hodges was entitled within the counties of Oxford and Berks, and in the several islands of St. Christopher's and Montserrat, and would yearly pay the same to Sir John Legard and Henry Hervey Aston or the survivor, his executors, &c. until the said sum of 10,000l. should be paid; and if Anthony Hodges should die, before the said 10,000l. should be paid, leaving the said Anna Sophia or any daughter or daughters, younger son or sons, of the said marriage then living, then the heirs, executors, or administrators of Anthony Hodges should within two years after his death pay to Sir John Legard and Henry Hervey Aston or the survivor, &c. the said sum of 10,000l. or so much as should remain unpaid, with interest at 5 per cent. from the day of his death, upon the trusts after mentioned; and it was declared, that the trustees should stand possessed of and interested in the said several sums of 4000l. and 10,000l. or such part thereof as should from time to time be paid into their hands, upon trust to invest the said sums in real or Government securities, and to pay and apply the yearly interest, dividends and proceeds thereof to Anthony Hodges and his assigns for his life; and after his decease, upon trust among other things to pay to Anna Sophia Hodges and her assigns for her life an annuity of 5007. as a jointure and in lieu of dower; and subject thereto in trust for the daughters and younger sons of the marriage, as therein mentioned; and in default of such issue in trust for Anthony Hodges, his executors, administrators, and assigns.

By indentures, dated the 7th of April, 1784, Anthony Hodges *demised, bargained, sold and assured, to Godschall [* 353] Johnson and William Turner, their executors, administrators

and assigns, all and every the freehold and copyhold messuages or dwelling-houses, lands, tenements and hereditaments, of Anthony Hodges situate at Bolney and other places in the counties of Oxford and Berks, and also all and every his plantations, dwelling-houses, boiling-houses, &c. buildings, lands, tenements and hereditaments, with the appurtenances in the islands of St. Christopher's and Montserrat, and also all and every the negroes, horses, mares,

subject are clearly stated in 2 Story, Eq. Jur. § 1428. A deed of separation, without the intervention of trustees, is utterly void. Ibid. And a deed for immediate separation, with the intervention of trustees, will not be enforced so far, as it regards any covenant for separation; but only so far as maintenance is covenanted by the husband, and the trustees covenant to exonerate him from any debts contracted therefor. Ibid. See also Hindley v. Westmeath, 6 B. &C. 200.