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Duncombe v Walter

Maclean & Robinson's Appeal Cases English Reports Cited authorities 5 Cited in Precedent Map Related
Vincent
JurisdictionEngland & Wales
Judgment Date01 January 1826
Date01 January 1826
CourtHigh Court

English Reports Citation: 89 E.R. 403

THE COURTS OF KING'S BENCH AND COMMON PLEAS

Duncombe
and
Walter

[539] de term. S. mich. 1681. in cohmuni banco. case 729. buncombe v. walter. S. C. T. Ray. 479. 3 Lev. 57. 2 Show. 253. Skin. 22, 87. 1 Vent. 370. Ante, p. 271. An executor may arrest before probate. A party being arrested for debt is set at large on bail, but afterwards renders himself to prison [where he lies for two months]; queers, whether his bankruptcy shall relate to the first arrest or to the render1! An action upon the case was brought by the plaintiff (as assignee of the commissioners of bankrupts) against the defendant Sir William Walter for 10001. which he received of Staly the goldsmith after he was supposed to become a bankrupt. The case: Staly was arrested the 6th of November by the executor of one of his creditors, and gave bail; the 18th of Nov. the said executor proved the will, and the 20th of Nov. the said Staly rendered himself to prison; and this 10001. in question was paid by Staly to Sir William Walter the said 18th day of November, which was the same day as the probate of the will. Two questiona 1st, Whether the arrest made by the executor upon Staly before probate be a good arrest 1 To that the Court were of opinion, that it was well enough, provided the executor had the probate under seal to produce at the time of the declaration ; for an executor hath an interest before probate, and may give goods and release debts, and although he never proveth the will, it shall be good enough. 5 Co. 28. And a release made to him is good before probate. 1 Rol. 917, adjudged in point. 2cl question. The said Staly giving bail at the time of the arrest, and afterwards rendering himself to prison, whether this shall have relation to make him a bankrupt (a) The report of Levinz, which is probably the more correct one, mentions that the will began thus: " I, John Stanley, make this my last will, &c.;" and further states that North, Wyndham and Charlton, were of opinion that sealing was sufficient, but that Levinz doubted of this. That the statute is complied with, if the devisor's name occurs in any part of a will written by himself, see Hilton v. King, post, p. 541. Anon. Skin. 227, cited 1...

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