case Duncomb against walter a arrest make by a executor before probate obtain  be good as between the party themselves but not to affect the interest of  three person and therefore if a person so arrest be a trader and give bail to  the arrest and afterward surrender in discharge of his bail and lie in prison  two month it shall not be a act of bankruptcy from the first arrest so as to  avoid a payment make by the bankrupt to another creditor on the day that  probate be grant but if the arrest under such circumstance be legal the act of  bankruptcy shall relate to the time of the surrender SC lev SC raym SC Freem  SC vent SC skin case by assignee of commissioner of bankrupt special verdict  in the court of common plea and judgement for the defendant there and writ of  error bring here the verdict find Staley the goldsmith a trader and the king  subject and to be indebt to one clarke in a thousand pound clarke die and make  crew his executor who arrest Staley upon a bill of Middlesex he put in bail  crew then p see the case of sir John cutler v friend ante shower KB er p prove  the will before the return of the writ and then Staley render himself in  discharge of his bail and lie in prison two year not pay or satisfy the debt  the question be whether he be a bankrupt from the time of the arrest the  clause of the statute James c be if he shall lie in prison six month from his  arrest c it be argue that he shall be a bankrupt from the first arrest here he  render himself before the return of the writ and two month after his arrest  his put in bail be nothing to the creditor they can make no use of the bail  though crew have not then prove clarke will yet the jury have find it justice  et yes debt is owed and it be debt is owed before probate he be executor by  the act of the party and not by the act of law as a administrator be he may be  defendant before probate and plaintiff so as to bring a writ though he can  shower KB declare and here the will be prove before the return of the writ and  that be well enough for before that time there be no action pen in court here  in this court the writ both of latitat and bill of Middlesex be general and  not as executor now when the will be prove it have relation to the death of  the testator so that the arrest be good ab origin roll Abr Walcot sergeant e  contra here be two question first whether he be within the Act of parliament  second as to the point of relation as to the first a arrest can make a man a  bankrupt for it be no offence to be in debt they do not find any act do from  the time of the arrest to the render himself to make good this action there  must be two relation from the probate of the will to the arrest and likewise  from the render himself in discharge of his bail to the time of the arrest  relation be but fiction in law and shall never work a wrong or charge to a  three person a judgement be give in the common plea after three solemn  argument and all the judge agree in opinion for the defendant b the court it  be not a slight matter they do not so much insist on the relation as on the  word of the Act of parliament the word of the statute James c be that if a man  be arrest do not pay or compound the same within six month after due or be  arrest do escape out of prison or get enlargement on common bail and shall lie  in prison two month then it say and in the say case of arrest or lie in prison  for such debt and get out on common or hire bail he shall be a bankrupt from  the time of the first arrest and the judge construe this to be only relative  to the two last clause and not to the not pay in six month after arrest and  that he shall be a bankrupt only from his render himself to prison for that  the best man upon the exchange may be arrest and put in bail and afterward  become poor and so he force to surrender himself to save his bail and it will  be hard to construe he a bankrupt from the first arrest when he be able and  judgement be affirm c a see Geo c S b Walter the defendant be a creditor of  Staley the bankrupt who after the arrest by crew and on the very day that  probate of clarke will be grant pay to Walter the money he owe to he and all  the judge of the common plea agree that as between crew and Staley the arrest  before probate be good but that quoad Walter it be illegal and so the payment  make by the bankrupt to Walter good because he can not be a bankrupt on a  illegal arrest even if he have lie in prison instead of give bail SC lev but  it appear by SC skin that to constitute this species of bankruptcy the arrest  must be legal and this opinion seem confirm by this case ex part Hilliard atk  c the judgement give for the defendant in the court of common plea be affirm  SC lev principal upon the point of relation for the court say that it will be  a great mischief if the bankruptcy shall relate to the first arrest or to the  payment of money to stranger SC vent beside the relation to make a man a  bankrupt ought to be upon a actual imprisonment and not upon the constructive  imprisonment on put in bail for in the first case every one have warning of  the trader situation but in the second he continue to appear public and afford  no notice SC skin but see the case of smith v stracy salk shower KB er p but  as to the other point they hold a executor have the same right before as after  probate and he shower KB may make a avowry for rend before probate