was exposed to the hazard of suits at law at once so expensive and so numerous; no depositor would be able to enforce his just rights, if he must sue in the superior courts, at the hazard of being defeated with heavy costs if he sued more of the trustees than he might be able to prove liable; or subject to have his suit abated if he sued too few. It is evident, therefore, that the legislature contemplated the cheap, simple, speedy, and equitable adjustment of all disputes by a reference in the mode pointed out in the act, instead of a more expensive, dilatory, and uncertain remedy by action at law; and we think we should defeat that very serviceable object, — serviceable alike to the depositors and to the institution, unless we construe the words used, as words which import an obligation to refer, and which take away the right to sue in the superior courts. In this view of the case, it would be improper to give an opinion on the other points which were made in argument, as we have no jurisdiction: and we can only express our surprise and regret that the Defendants, who set up this as a ground of defence, did not act upon it when the Plaintiff appointed an arbitrator on his part. At present, however, there must be judgment for the Defendants. 1832. CRISP ข. BUNBURY. 1832. May 10. By marriage settlement, S. covenanted to EDWARD GRAY, upon the marriage of his daugh ter with William Smith, covenanted in her marriage settlement to pay Smith 2300l. immediately, for his ab solute benefit, and 40007. more within twelve months after Gray's decease. The 2300l. was accordingly paid twelve months on the marriage, and the 4000l. shortly after Gray's cause 4000/. to be paid to his wife's trustees within after his own decease, in trust to pay her the interest for her life in decease. Smith, on his part, covenanted to secure his wife 80l. a year for her separate use, and, within twelve months after his decease, to cause to be paid 4000% to vived him, and her trustees, with interest from the time of his death, in afterwards the trust to pay the interest and annual produce to his wife principal to for her life in case she survived him; and after her death, case she sur their children; but if they ren to the sur S. and his in trust to pay and assign the money and the interest, had no child- and annual produce thereof to, between, and amongst vivor of them, the child and children of Smith and his wife, in manner thereinafter mentioned; and if they had no child or children, to the survivor of them the said Smith and his wife, his or her executors, administrators, or assigns. The provision made for the wife was to be in lieu of dower. wife, his or her executors or administrators. Held, that this was a debt on a Smith having become bankrupt, and his wife being contingency, still alive, Tindal, the trustee under her marriage settleproveable under a com- ment, applied to prove the value of the 4000l. covenanted to be paid by the executors of Smith within twelve months after his death, under 6 G. 4. c. 16. s. 56., which enacts, that "If any bankrupt shall, before the issuing of the commission, have contracted any debt payable upon a contingency which shall not have happened before the mission of bankrupt against S. issuing issuing of such commission, the person with whom such debt has been contracted may, if he think fit, apply to the commissioners to set a value upon such debt; and the commissioners are hereby required to ascertain the value thereof, and to admit such person to prove the amount so ascertained, and to receive dividends thereon; or, if such value shall not have been so ascertained before the contingency shall have happened, then such person may, after such contingency shall have happened, prove in respect of such debt, and receive a dividend with the other creditors, not disturbing any former dividends." The proof was rejected by the commissioners, but their decision was reversed by his Honor the ViceChancellor. (a) The decision of his Honor was afterwards reversed by Lord Lyndhurst. (b) This was a petition to Lord Brougham C. to rehear the order made by Lord Lyndhurst, and was argued before the Lord Chancellor, assisted by Tindal C. J. and Littledale J. on the 27th of August 1831. (c) TINDAL C. J. now delivered his opinion as follows, in which LITTLEDALE J. and Lord BROUGHAM C. concurred: There are two questions in this case: First, whether the bankrupt has contracted a debt payable on a contingency within the meaning of the fifty-sixth section of 6 G. 4. c.16.; 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 the behalf of I (a) See 1 Mont. & Mac. 415. (b) 1 Mont. & Mac. 422. (c) For the 1832. Ex parte 1832. Ex parte 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; that the only effect of that contract is, to create a charge on his assets; and that such was all that the parties themselves 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 must 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 fifty-sixth section of the 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 Leonard, 208., Com. Dig. tit. Debt (A 4.), Ingledew 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. Plumer 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 (a) 2 Ld. Raym. 814. (b) 3 Burr. 1380. to to trustees for the benefit of his wife and children; and an action being brought against the administrator on a bond of the testator, he pleaded plene administravit : the question was, whether he could retain the money so covenanted to be paid; and all the Court held that this was a debt which might be retained. It is true, there was a penalty on which debt would lie, but the Court only noticed that incidentally, and it is plain that their judgment would have been the same if there had been no penalty. There may be a doubt whether an action of debt, technically so called, would lie against executors upon such a covenant, because debt would not have lain against the testator himself: Wentworth's Office of Executors, 232., and Perratt v. Austin (a): though Lord Mansfield, in Plumer v. Marchant, above cited, speaks very lightly of the latter case of Perratt v. Austin, and even in the case itself, there is a note at the end making a quære to one of the reasons. But those authorities are merely to the form of action, whether it should be debt or covenant, and do not affect the substance of the case, which is, whether a sum of money is payable by the contract; and in the case referred to in Leonard's reports, it is said that the word covenant sometimes sounds in covenant, sometimes in contract, according to the subject-matter. The case of Lee v. Cox and d'Aranda (b) was cited, to shew that a covenant that a man's executors should pay, was the same as a covenant to leave a sum of money, and that the latter did not create a debt; but without considering whether at law at least, a covenant that a man's executors shall pay, be for all purposes the same thing as a covenant that he will leave, the case of Lee v. Cox and d'Aranda was upon a question, whether a widow should have the benefit of such a covenant, and (a) Cro. Eliz. 232. VOL. VIII. (b) 1 Ves. 1. and 3 Atk. 419. E e also 1832. Ex parte |