atkins case ex part groom October the that Davies S c a husband by article  previous to marriage covenant to leave his wife pound in case she survive he  he become a bankrupt and die before any dividend make the wife as the law now  stand can be admit a creditor under a commission against the husband on  article previous to the marriage of the petitioner the husband covenant to  leave his wife pound on the contingency of survive he a commission of  bankruptcy be take out against the husband who die before any dividend be make  the petitioner attempt to prove the pound as a debt before the commissioner  but they refuse her and therefore apply now by petition to be admit a creditor  for pound Mr solicitorgeneral for the petitioner cite will entitle ex part  caswell c to show that though the debt be contingent when the obligor become a  bankrupt yet if the contingency happen before the distribution make then such  contingent creditor shall come in for his debt so if such contingency have  happen before the second dividend make the creditor shall come in also for his  proportion thereof though after the first dividend Mr Talbot of the same side  state that the petitioner marry in and bring pound fortune the husband soon  after become a bankrupt and her money have contribute to satisfy his creditor  insist this be a debt arise on a consideration prior to the act of bankruptcy  and as the husband be now dead the debt may be say to have a relation to the  day of the contract Mr attorney general for the assignee insist that under the  act of parliament atkins er p of the Elizabeth cap no person can be entitle to  a distribution but who be a creditor at the time of the commission issue and  the commissioner be thereby direct to order the same for true satisfaction and  payment of the say creditor the statute of the that of George the d cap in a  clause relate to certificate say that such bankrupt who after obtain thereof  shall be take in execution or detain in prison on account of any debt due or  owin before he become a bank rupt shall be discharge out of custody on such  execution c but if the construction of this act shall be that the bankrupt be  liable to contingent debt that become due after the bankruptcy and then he be  not discharge such a construction will entire overturn this act of parliament  the judge be of opinion in a case upon the construction of the old act of  parliament relate to bankrupt that a creditor who debt be contract before but  do not become du e till the act of bankruptcy commit can not take out a  commission but on a appeal afterward to the house of lord it be there  determine otherwise he cite the case ex part smith the d of January in which a  contingent creditor who apply to be admit to prove his debt be deny by the  court and another case ex part king January Davies S c where it be also deny  atkins Mr solicitor general in his reply say that these two case be not  absolute determine and there be no one case where Lord king distinction in ex  part caswell have be controvert he insist that the case make no distinction  between a bind and a covenant and that there be no clause in any act of  parliament which confine the distribution to creditor only at the time of the  bankruptcy commit or exclude creditor who contingent debt take place before  distribution before the statute the Geo cap he say there be no doubt at all  but the creditor may come in when the debt become Payable but the only doubt  be whether they may come in before therefore to remedy this inconvenience of  the effect be divide away before such creditor can come in the act enable they  to prove their several security before they become Payable Lord chancellor  order it to stand over till this day that he may give his opinion at the same  time upon another contingent case ex part Winchester which come on two day  after the case ex part groom the state of the case ex part Winchester Davies S  c previous to the marriage of the petitioner with Elizabeth grant daughter of  the bankrupt by a indenture date the d of July make between the petitioner of  the one part and John grant the bankrupt and Elizabeth the petitioner wife of  the other part recite the then intend marriage between the petitioner and  Elizabeth and that John grant have before the execution of the indenture pay  the petitioner pound and by a bind date the same day secure pound more to be  pay to the petitioner his executor administrator and assign within month after  the death of the survivor of John grant and Barbara his wife together with  interest for the same at pound per cent per and by equal half yearly payment  which pound then pay and pound secure to be pay be declare to be in full for  the wife portion it be agree and the petitioner covenant with John grant that  the petitioner heir executor or administrator shall within one month after the  petitioner death pay to John grant his executor or administrator the sum of  pound to be place out at interest for the petitioner wife and the issue of the  marriage and it be also agree that the pound and the pound when due shall be  place out at interest in the name of two trustee in trust after the death of  the survivor of petitioner and his wife to distribute the pound among the  child in such proportion as the petitioner and his wife shall direct and for  want of such direction in trust to divide the same between such child equal  and in case there be no issue of the marriage to pay pound part of the pound  to such person as the petitioner wife shall appoint and for want of such  appointment to the petitioner his heir executor or administrator atkins the  marriage be accord have between the petitioner and Elizabeth grant and there  be issue of the marriage live three child John grant regular pay the interest  of the bind to the that of December last but no payment have be since make and  the condition of the bind be break by the nonpayment of the interest which  become due to the petitioner on midsummer day atkins er p in April last a  commission of bankruptcy issue against John grant and he be thereon declare a  bankrupt and assignee choose but no dividend yet make of the bankrupt estate  and the petitioner have apply to the commissioner to be admit a creditor for  the say sum of pound but such sum not be Payable till after the death of John  grant and Barbara his wife the commissioner refuse to admit the petitioner a  creditor and therefore he prefer his petition to be admit a creditor for the  principal sum of pound and that the dividend thereof may be lie out in the  purchase of SouthSea annuity for the benefit of the petitioner his wife and  child and also pray to be admit a creditor under the commission for pound be  the half year interest due on the bind at midsummer last Lord chancellor these  be sometime case of value more often case of hardship and compassion it be to  be wish that they be provide for by act of parliament and I hope some  gentleman who hear I will consider how to rectify this by some future statute  there have be a great many case in this court upon this point some where a  husband before a marriage have contract with trustee for the wife to pay a sum  of money in his lifetime for her benefit if she survive and if she die for  child and if no child for the benefit of the husband see Davies there have be  other case where the time of payment do not arise till the contingency take  effect after the death of the husband and there have be other case where the  father of the wife have enter into a covenant to pay a sum of money after the  death of himself and his wife and interest in the mean time which be the  present case ex part Winchester and other case like that ex part groom they  will fall under very different consideration and I will give my opinion upon  all of they if a husband become a bankrupt after a breach of payment to  trustee they have always be admit creditor upon equitable term and the court  have take care that the interest of the money shall be pay to the creditor  under the commission during the life of the husband and the principal secure  to the wife in case she survive her husband ex part smith cook b law ex part  brown ibidem ex part MiIford bro Charles can if judgement have be give at law  by the husband for this sum this a debt notwith stand the defeazance and the  trustee will have be admit as creditor though the term of the bind itself be  otherwise atkins as to Winchester case where the father of the wife have give  a bind to the husband to pay he the principal sum of pound after the death of  himself and his wife and interest at per cent by half yearly payment in the  mean time upon what term shall the party be relieve against the penalty why  upon pay what be in conscience due out of the estate here be clear a breach of  the condition of this bind before the bankruptcy for the half year interest be  become due at Christmas but not pay till the that of January and therefore not  be pay at the day the penalty be forfeit at law it have be say it turn upon  the act for the amendment of the law the that and that of Q whether cap sec  that when a action of debt be bring upon any bind which have a condition or  defeazance to make void the same upon payment of a lesser sum at a day or  place certain if the obligor his heir executor or administrator have before  the action bring pay the principal and interest due though such payment be not  make strict accord oh the condition or defendance yet it may be plead in bar  and shall be as effectual as if the money have be pay at the day and place  accord to the condition and have be so plead before this act of parliament the  bind be forfeit if not pay at the day at a day or place certain be material  word this be a new defence and a new plea give by the act of parliament and  therefore the common way of plead be that all interest be pay before action  bring but this be not a bind with a defeazance for the payment of a lesser sum  at a day certain for here the principal be to be pay at a uncertain time for  it be to be pay within a twelvemonth after the death if the survivor of father  and mother it be not therefore a bind within the description of the statute  nor do the act of parliament intend to comprehend bind of this nature for  suppose a bind Payable at instalment the obligee get judgement on the whole  atkins er p penalty upon a breach of payment at the first instalment why even  a court of law will in such case act equitable for upon the obligor apply to  the court there and offer to pay the money due at the instalment and agree to  let the judgement stand as a security for the rest they will relieve the party  on payment of the money then due and cost if this case be not within the act  of parliament then it come within the construction of the other two head of  case and Mr Winchester ought to be admit a creditor on the that set of case  which be groom S I be of opinion though I be sorry I must go on such nicety  that he can be admit a creditor in all the other case there be a remedy at law  before such time as the act of bankruptcy be commit or Commission take out but  here there be not as to the case that have be mention ex part caswell c this  bare a opinion of Lord king and not the case in judgement but he do obiter  declare his opinion only my atkins Lord Talbot afterward doubt of Lord king  opinion and in a case before I since I have differ from he entire and see no  occasion to alter my opinion the question turn on the new act of parliament of  the that of George the second cap see I think that the privilege of creditor  to come in and bankrupt to be discharge from debt be coextensive and  commensurate and very equitable for it will otherwise make a inequality among  the creditor for a creditor who debt be due before the take out of the  commission shall perhaps have no more than S in the pound and this creditor  who debt be not due till a second distribution shall come in for as much as  the other creditor and likewise have remedy open to he for the rest against  the bankrupt for the word of the that of George the second be and every such  bankrupt shall be discharge from such debt as shall be due and owe at the time  of the bankruptcy so that this will be a glare injustice against the creditor  at the time of the commission take out commissioner very right declare a man a  bankrupt only before issue tile commission without specify any precise time  the clause relate to mutual credit sec show plain the act intend to confine it  to creditor at the time of the commission Thatwhere it shall appear to the  commissioner that there have be mutual credit give by the bankrupt and any  other person or mutual debt between the bankrupt and any other person at any  lime before such person become bankrupt the commissioner c shall state the  account between they c I will put this case suppose a debt due from Mr groom  to the bankrupt before his bankruptcy and that the bankrupt owe he a debt on  bind upon a contingency that take place after the bankruptcy and before the  final dividend will it not be a great hardship upon the rest that such  creditor shall be at liberty to set off to go a step further by the statute of  the that of George the first cap it be enact as follow that all and every  person or person who now be or shall become bankrupt shall be discharge of aid  from all and every such bind note c and shall have the benefit of the statute  now in force against bankrupt in like manner to all intent and purpose as if  such sum of money have be due and Payable before the time of his become  bankrupt in Tully v spark Lord Raymond d vol there be two contingency and as  both have not happen at the time of the act of bankruptcy it be uncertain  whether the bind will ever become due or not it be impossible to make such  abatement atkins of per cent as the act direct and therefore the court of king  bench be of opinion the bind be not within the act of the that of George the  first there be no such thing as draw a line between the contingency not happen  before the bankruptcy and yet happen before the time of distribution this will  not only be a hardship on the bankrupt and on the rest of the creditor who  debt be actual due but will have give the contingent creditor a superior  privilege by leave it open to he to recover the remainder of the debt against  the bankrupt the case of groom may have hardship and I be sorry for it but as  the law now stand I can determine otherwise I hope however as I say before  some gentleman will think of a clause by way of amendment to this last  bankrupt act which may remedy and settle this for the future the petition of  groom be dismiss ex part Michael next case ex part cork vin pl ex part king  Davies cook b law atkins er p and with regard to Mr Winchester his lordship  order that the petitioner be at liberty to prove his debt of pound and that he  be admit a creditor under the commission for what he shall so prove and be pay  out of the bankrupt estate a dividend in respect thereof rateably with the  other creditor of the bankrupt