Scottish Court of Session Decisions

The estates of Robert Leisk junior, formerly clerk in the National Bank, Glasgow, were sequestrated on the 10th September last by interlocutor of the Sheriff of Lanarkshire. The salary of the bankrupt had been at first £20, then £60, and for the last quarter of his service in the bank £80 a-year. These being his resources, he had speculated in railway and other shares to the extent of over £25,000, and the claims lodged in his sequestration were to a very small extent for ordinary debts, being chiefly founded on broking transactions and on I.O.U.s for loans of money. One of his brokers was John Christie Foulds of Glasgow; and a transaction in Caledonian stock carried through by him in March last resulted in a loss to Leisk of £369, 16s. 2d. Shortly after this Leisk received an appointment in the Bank of British North America at Montreal, but he lost this situation in consequence, as he alleged, of proceedings taken by Foulds to compel payment of his debt. These proceedings resulted in his incarceration in the North Prison, Glasgow, on the same day that sequestration was awarded.

The petition for sequestration had contained a prayer for liberation; and on 20th September the Sheriff-Substitute ( Galbraith) pronounced the following interlocutor:—“Having heard parties' procurators and resumed consideration of this application, together with the minutes of meeting of creditors yesterday, from which it appears that by a large majority the creditors find the bankrupt entitled to protection for the period of six months—Finds, however, that liberation can only be granted on caution for appearance as afterwritten; therefore grants warrant to the keeper of the prison of Glasgow to liberate the said petitioner Robert Leisk junior, so far as detained under diligence at the instance of John Christie Foulds, sharebroker in Glasgow, acted in the Books of Court in common form, that he will attend all diets in the sequestration during the period of six months after the date of his liberation at which he may be required by the trustee to appear, or which he is bound to attend in terms of the Bankruptcy Statutes, and that under a penalty of fifty pounds sterling in the event of his failure to attend any such diets.”

Against this deliverance Foulds appealed, and he shortly afterwards brought a petition for recall of the sequestration on two grounds—(1) that the bankrupt was not domiciled in Lanarkshire; and (2) that the two concurring creditors were conjunct and confident with the bankrupt, and not truly creditors of his at all. This petition was dismissed by the Lord Ordinary; but that interlocutor being subject to review, Foulds still insisted in the present appeal.

Argued for the appellant—That the caution offered was not sufficient, nor was it such as could be made available; (2) as the sequestration might still be recalled, and the application for liberation would in that event be inept, liberation ought not to be granted.

At advising—