1832. Ex parte who decided them (a), of the extreme hardship of the position in which a party entitled to a contingent debt, as well as the honest bankrupt himself, were placed in; for in all these cases the judges, more or less, express their anxiety to see the law in this respect altered by legislative enactment. It was for the purpose of remedying an evil so universally admitted, that the provision made by the 56th section was introduced, for the first time, into the 6th Geo. 4. c. 16. That act is remedial; and it is the duty of the Court to extend the construction of it, so as to take in the present case. In the Dean of York v. Middleburgh (b) Lord Chief Baron Alexander says, "It is by no means unusual, in construing a statute, to extend the enacting words beyond their natural import and effect, in order to include cases within the same mischief, where the statute is remedial." The statute also, by the 51st section, provides for debts subsisting at the bankruptcy, but not payable till a future period, -such as those on bills, bonds, notes, or other securities, which are proveable under the commission, but with a rebate of interest. The 52d section provides for sureties who may become liable; the 53d for bottomry and respondentia bonds; the 54th and 55th apply to annuitants; and the 56th to contingent debts. If, therefore, creditors under marriage settlements were excluded from this section, the section would be wholly inoperative and useless; unless it should be construed (a) Ex parte Greenway, 1 Atk. 113; Ex parte Groome, id. 115; Ex parte Barker, 9 Ves. 110; Mayer v. Steward, 4 Bur. 2439, cited 8 East, 516; Wyllie v. Wilkes, Doug. 519; Cowley v. Dunlop, 7 T. R, 565; Bamford v. Burrell, 2 B. & P. 1. (b) 2 Y. & J. 215. to be confined to the case of guarantees,-which, however, would be contrary to the known rule of law, that words used in a general sense are not unnecessarily to be limited to a particular case. As to the second objection, namely, the impossibility of valuation, from the remoteness of the contingency,-there is no such difficulty in this case. The valuation to be made is simply on the contingency of the husband dying before the wife, with or without children. But the mere difficulty of the calculation, supposing such a difficulty to exist, ought not to deter the Court from the admission of the proof. The only question, however, and one which may be solved by any actuary, -is this: What is the value of the interest of a wife, of the age of 42, in certain funds, to which she will be entitled if she survives her husband, who is of the age of 50? Mr. Pepys and Mr. Rolfe for the assignees. As to the first objection, the debt in this case is one, by the terms of the settlement, payable after the death of the bankrupt, and not before. It is a debt, therefore, which the bankrupt cannot himself be personally called upon to pay, and, consequently, neither can his assignees. It may affect his assets after his decease, but the scope of the bankrupt laws cannot be extended to the administration of an estate, that may only be acquired by the bankrupt after obtaining his certificate. The present claim is a mere covenant to pay, and like a covenant to leave a sum of money by will, as in the case of Lee v. D'Aranda (a). The covenant could not have been satisfied by mere payment in the life-time of (a) 1 Ves. sen. 1; 3 Atk. 419. 1832. Ex parte 1832. Ex parte the covenantor to the trustee, without a release also obtained from the cestui que trust. Nor could the heir or executor of the covenantor have pleaded solvit ad diem. [Tindal, C. J. He might have pleaded accord and satisfaction.] That, however, would not have been good in equity, unless he had also shown accord with the cestui que trust, which is here an impossibility. But where there is a mere covenant to leave a sum by will, it does not create a debt either from the covenantor himself, or from his executors. Perrot v. Austin (a). [Littledale, J. referred to the case of Plumer v. Marchant (b).] In that case, which was an action by a specialty creditor against an administrator, the intestate had bound himself to the defendant in a penalty, thereby creating a clear legal debt. And, as was observed in the argument of that case, the administrator might have immediately paid the amount to the trustee as soon as the intestate was dead, had not the administrator himself stood in the situation of a trustee as well as administrator; but, in his character of administrator, he had a right to retain it. As to the second objection, we contend that there is no possibility of calculating the interest of the petitioner in this sum of 40007. At the present moment there is no issue of the marriage. If this should continue to be the case, and the bankrupt survive the wife, then there can be no proof; because the bankrupt will be proving for his own benefit, contrary to the rule laid down in Ex parte Taaffe (c). It is therefore a calculation of the probability of issue, which is incapable of being made. Be sides, there is the difficulty as to the form of proof. For the proof must be made by all the adults, and by or on behalf of each of the infants, who may be numerous; and the funds must accumulate, till the number entitled is ascertained by the happening of the contingency. Mr. Montagu in reply. As to the difficulty of proof, the trustee is the proper person to prove, subject to any order the Court may think proper to make for the protection of the cestui que trust. Ex parte Dubois (a). And the number of claimants can raise no difficulty in this case; for in other instances they have been far more numerous. Cur. adv. ult. Lord C. J. TINDAL-In this case, which arises upon a proof claimed to be made by trustees under a marriage settlement, it is unnecessary to state the facts, which are completely in the possession of the Court. It appeared to my brother Littledale and myself, that there were two questions in this case: first, whether the bankrupt has contracted a debt payable on a contingency, within the meaning of the 6 Geo. 4. c. 16. s. 56; and secondly, supposing that he has done so, whether the commissioners can set a value upon the debt, so as to make it the subject of proof under the commission. On the first question, it is contended on behalf of the assignees, that the contract entered into by the bankrupt is not a debt, but merely a covenant that the executors of the bankrupt shall pay a sum of money on a collateral event; and that the only effect of that con(a) 1 Cox, 312. 1832. Ex parte Easter Term, 2d May 1832. 1832. Ex parte tract is to create a charge on his assets; and that such was all that the parties contemplated by the settlement; as the bankrupt himself could never have been liable to pay the money. That the parties themselves took the chance of what the assets might produce,—a chance which in some cases might be more beneficial to the wife and children; because, if the husband should become bankrupt, and afterwards acquire property, they would have the benefit of the provision in full, instead of a dividend very much diminished, as it might be, by the calculation of the contingency. But we are of opinion, that the contract contained in the settlement is a debt which the bankrupt has contracted, within the meaning of the 56th section of the late bankrupt act. A covenant to pay a sum of money constitutes a debt, and an action of debt, technically so called, may be maintained upon it. 1 Leon. 208; Com. Dig. tit. Debt, A. 4; Ingledon v. Cripps (a). For, though in the case last cited there was a penalty, yet the language of the Court is, that debt will lie on a covenant to pay a sum of money; and it is a common practice to draw declarations in debt, on a covenant to pay a sum of money. And if a man covenants that his executors shall pay a sum of money after his death, that also appears to us to create a debt; and we think it just as much so, as if he himself had covenanted to pay it. Plummer v. Marchant (b). In that case, the testator covenanted that he would leave by his will, or that his executors or administrators should within six months after his death pay, a sum of money to trustees for the benefit of his wife and children; and an action having been brought (b) 3 Burr. 1380. (a) 2 Ld. Raym. 814. |