the money in his hands without even tendering it, until a bill is on the point of being filed. Although I dismiss this bill as to the performance of the agreement for a lease, yet there is one part of the agreement clear and distinct, that in case of failure, the fifty guineas was to be repaid with interest, and therefore I shall direct the register to compute what is due on the foot of the fifty guineas and interest. I have a great inclination to give the plaintiffs costs on that part of the case; and I shall dismiss the bill so far as it seeks a lease, without costs. As to the Cahills they have acted a dishonest part; they knew of the agreement; and I shall dismiss the bill as againt them, without costs. Reg. Lib. xlviii. 432. 1802. CLINAN υ. COOKE, END OF THE SITTINGS AFTER MICHAELMAS TERM. 1803. Jan. 25. A bond is giv en by a trader previous to his marriage, to a trustee, and by marriage settlement of same date, it is covenanted that the sum mentioned in the bond is to be payable only the wife sur also covenant ed that in case wise the trus HILARY TERM, 1803, MATTER OF PATRICK MURPHY, A MR. HENCHY, on the petition of Agnes Murphy, (wife On the 3d October, 1795, previous to the marriage of the bankrupt with the petitioner Agnes, a bond was executed by him to the trustees in the penal sum of 1,600/, conin the event of ditioned for the payment of 800/ on the 3d day of viving he hus- March, 1796, with warrant of attorney to confess judgband; and it is ment with stay of execution till the 3d day of March 1796. A settlement, of same date with the bond, was of the usband executed between the bankrupt of the first part, Mary failing in his circumstances, Nolan, and Agnes Nolan her daughter, of the second part but not other and Thomas F. Nolun of the third part, which referred to the tee shall sue on bond, and whereby it was covenanted, "that the sum of the bond. The 8001. therein mentioned was payable, and to be sued for "only in the event of the wife surviving the husband," and in case of her dying before him, it was provided that the children of that marriage should have a share of his property equal to the children by any after taken wife. Then (after reciting that the husband was a trader) it was further covenanted, "that in case of failing in his circumstances, but "not otherwise, the trustee was empowered to enter judg"ment on the bond, and to issue execution for tlie amount "thereof." husband fails, living the wife. The trustee ought not to be admitted a creditor. The settlement was duly registered on the 12th October, 1795, pursuant to the stat. 5 Geo. 2. c. 4, sect. 10. The bankruptcy happened long subsequent to the 3d of March, 1796. The Lord CHANCELLOR, on the facts being disclosed, said, that he considered the whole device to be a fraud upon 1803. MUYPHY, the bankrupt laws; that under the first mentioned covenant, a Bankrupt. the debt was merely contingent, and that the subsequent provision, in case of insolvency, &c. was fraudulent. Mr. Henchy. The question is, whether this be a debt proveable under the commission? now, the wife's trustee has always been admitted to prove, where there was a remedy at law prior to the bankruptcy. In the case Ex parte. Winchester, 1 Ath. 117, Lord HARDWICKE says, "If a hus"band becomes bankrupt after a breach of payment to 66 trustees, (which is the present case) they have always "been admitted creditors upon equitable terms," and his Lordship added, "If judgment had been given at law by "the husband for this sum, 'tis a debt notwithstanding the defeasance, and the trustees would have been admitted "creditors, though the terms of the bond itself be other"wise." And in 1 Atk. 121, Lord HARDWICKE says, “In "those cases where he had let in such creditors, a judgment "was given at the time, which is an immediate debt at law, "and suspended in equity only upon the defeasance." And in 1 Atk. 118, his Lordship says, " In Groome's case, I "am of opinion (though I am sorry I must go upon such 66 niceties) that he cannot be admitted a creditor : on all the "other cases, there was a remedy at law before such time "as the act of bankruptcy was committed, or commission "taken out, but here there was not." It remains therefore to shew, that there was in the present case a remedy at law prior to the bankruptcy. It is not denied, that the settlement was duly registered pursuant to the statute; and there was a breach of the condition of the bond by non-payment on the 3d day of March, 1796, by which the debt then became absolute at law. Then if the trustee had proceeded by action on the bond subsequent to 3d March, 1796, he 1803. MURPHY, a Bankrupt. must have had judgment at law; for the covenant could not have been pleaded in bar to such action: a covenant in one deed cannot be pleaded in bar to a covenant in another deed, except such deed be a defeasance of the former: Gawden v. Draper, 2 Vent. 217. Now, this covenant is not a defeasance; for every defeasance must contain proper words of defeasance, as, that the thing shall be void: Lacy v. Kynaston, 2 Salk. 575. If obligee covenants not to sue the obligor for a certain time, it does not amount to a defeasance, nor can it be pleaded as such, but is a mere covenant only, for breach of which the obligor may bring his action. Ayloffe v. Schimshire, Carth. 63. S. C. ; 1 Show. 46; Camberb. 123; 2 Salk. 573; Deux v. Jefferyes, Cro. Eliz. 352; 1 Rol. Abr. 939, and Burgh v. Preston, 8 T. R. 483. And in Staines v. Planck, 8 T. R. 389, Lord KENYON thus expresses himself: "It is very clear, that a mere contingent debt is not prove"able under a commission; but if there be a legal debt, "tho' liable to be defeated afterwards upon a contingency, 66 it may be proved under the condition. For that reason it frequently happens, that a trader who wishes to secure a provision for his wife and family in case of his insolvency, "on his marriage gives a bond to trustees payable imme66 diately, and then in the event of his subsequent bankruptcy, the bond being forfeited at law may be proved "under the commission, because there is a legal debt." Mr. Wallace, for the assignees, referred to Ex parte Henecy, in this court, Trin. 1802.(a) (This was a motion on petition, for leave to prove the amount of a bond given to trustees for the benefit of the bankrupt's wife on their intermarriage. It appeared to be an absolute bond, with a common condition for payment on a day certain, which was passed at the time of the bankruptcy: but on the back of the bond there was an endorsement in the nature of a defeasance, (a) Ex relat, by which it was agreed, that the bond should not be payable or called in, unless the obligor should become insolvent, or until his death. The Lord CHANCELLOR referred to the cases Ex parte Hill, and Ex parte Bennet (a) as in point, to shew that such a debt as this, is not proveable under the commission; that it is considered as a fraud on the bankrupt laws, and that the creditors have a right to say it was a debt that could not be enforced against the bankrupt himself before his bankruptcy, and therefore could not be proved under the commission. The defeasance here is a fraud: the effect of it is, that the wife shall never be able to compel payment from the husband during the solvency, but that when he becomes insolvent she shall be able to enforce it against his creditors; even in the case where a sum of money has been invested in the trustees, with a provision that they may lend it to the husband (being a trader) on his bond, it has been doubted whether it was not fraudulent; though the trustees in such case may enforce payment of the money at any time they think fit. (The cause stood over to another day, when his Lordship said) that debt cannot be in effect a legal debt which cannot be enforced during the solvency of the party; and a contract to make a legal debt not enforceable till death or bankruptcy is a fraud on the bankrupt laws, as not being possible to enforce it against the debtor, except in the character of bankrupt :(6) and a judgment debt is not different from any other; the judgment is only evidence of the debt. Ex parte Winchester, iflooked into, will appear different from this; there there was no restraint on the calling in the money. The wife's own fortune(c) may be thus settled, because the husband is bound to maintain her, and when he no longer can, it is fair that she should have her own back (a) 1 Co. Bank. Law. 232, 237. (b) Sed Vid. Ex parte Michell, 1 Atk. 121. (c) 2 Str. 947, Lockyer v. Savage; 8 Ves. Jun. 353, Ex parte Cooke. 1803. MURPHY, a Bankrupt. |