Duncomb against Walter
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1794 |
| Date | 01 January 1794 |
| Court | Court of the King's Bench |
English Reports Citation: 89 E.R. 923
IN THE KING'S BENCH.
case 254. D unco mb against walter. An arrest made by an executor before probate obtained, is good, as between the parties themselves, but not to affect the interests of third persons ; and therefore if a person so arrested be a trader, and give bail to the arrest, and afterwards surrenders in discharge of his bail, and lies in prison two months, it shall not be an act of bankniptcy from the first arrest, so as to avoid a payment made by the bankrupt to another creditor on the day that probate was granted; but if the arrest under such circumstances be legal, the act of bankruptcy shall relate to the time of the surrender.-S. C. 3 Lev. 57. S. C. Raym. 479. S. C. 1 Freem. 539. S. C. 1 Vent. 370. S. C. Skin. 22, 87. Case by assignees of commissioners of bankrupts : special verdict in the Court of Common Pleas, and judgment for the defendant there ; and writ of error brought here. The verdict finds Staley the goldsmith, a trader, and the King's subject, and to be indebted to one Clarke in a thousand pounds. Clarke dies, and makes Crew his executor, who arrests Staley upon a bill of Middlesex: he puts in bail. Crew then (p) See the case of Sir John Cutler v. Friend, ante, 140. 924 HILARY TERM, 34 AND 35 CAR. 2. IN B. B. 2 SHOW. K. B. 264. proves the will before the return of the writ, and then Staley renders himself in discharge of his bail, and lay in prison two years, not paying or satisfying the debt. The question was, whether he was a bankrupt from the time of the arrest 1 The clause of the statute 1 Jac. 1, c. 15, is, " if he shall lie in prison six months from his arrest, &c." It was argued that he should be a bankrupt from the first arrest: here he renders himself before the return of the writ, and two months after his arrest: his putting in bail is nothing to the creditors; they can make no use of the bail; though Crew had not then proved Clarke's will, yet the jury have found it justum et venim debitum, and it is debitum before probate : he is executor by the act of the party, and not by the act of law, as an administrator is : he may be defendant before probate, and plaintiff so as to bring a writ, though he cannot [254] declare; and here the will is proved before the return of the writ, and that is well enough; for before that time there is no action pending in Court: here in this Court the writs both of latitat and bill of Middlesex, are general, and not as...
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