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United Kingdom House of Lords Decisions |
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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Archibald Scot - Wilson v. Ker and Johnstone (for Leith Bank,) - John Miller [1830] UKHL 4_WS_441 (9 December 1830) URL: http://www.bailii.org/uk/cases/UKHL/1830/4_WS_441.html Cite as: [1830] UKHL 4_WS_441 |
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Page: 441↓
(1830) 4 W&S 441
CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND, 1830.
1 st Division.
No. 50.
Subject_Bankrupt. —
Circumstances in which (affirming the judgment of the Court of Session) objections stated to a petition for sequestration under the bankrupt statute were repelled.
The Leith Banking Company are an unincorporated company, consisting of more than six partners. Of these partners, Archibald Scot, writer in Langholm, was one. He was also the bank's agent in that town; and likewise superintended a branch of their business established by them, but without
Page: 442↓
Thereupon a petition for the sequestration of the estates and effects of Scot was presented in the names of “James Ker and Henry Johnstone, managers to, and for behoof of, the Leith Banking Company.”
Scot objected, that the Company were unincorporated, and had not complied with the statutory observances requisite to give them a title to sue; but the Court repelled the objection. Then, on the merits, Scot maintained that the debt of L.1500, on which he had been incarcerated, had been paid; that the diligence on which the incarceration had followed was inept; and that there was no legal caption in existence against him when he repaired to the sanctuary, as no caption could have passed on the bill under sist for L.500; consequently, he had never been rendered bankrupt. The Court ordered a minute, stating the grounds on which Scot was a bankrupt when the petition for sequestration was presented. The Bank stated, that Scot had been incarcerated in virtue of letters of horning and caption on the L.1500 bill; and that, although the principal of the debt was paid, the interest remained due; that the caption on the L.500 bill was a valid and legal diligence; that these bills had no connexion with the Carlisle agency; that Scot was under legal diligence at the instance of other individuals; that he was insolvent, and had fled to the sanctuary to avoid his creditors. Scot answered—That he had challenged the L.1500 bill and diligence; that the caption on the L.500 bill was inept, and incurably so; and that it had not been obtained when he went to the sanctuary; that he had not been made bankrupt; that he was not insolvent; that he did not come under the class of persons who are liable to sequestration; and he maintained that all the transactions which had given rise to these questions were tainted by the illegality of the Bank's establishment in Carlisle,—that agency being in direct contravention of the monopoly of the Bank of England, secured by statute; and, consequently, the Leith Bank being versantes in illicito, could not claim the aid or redress of a court of law, as to matters arising out of their illegal acts.
Page: 443↓
The Court repelled the objections, sustained the title of the petitioners, and sequestrated the estate and effects of Scot. *
Scot appealed.
Appellant.—Besides repeating the statement relied on in the Court below, Scot maintained that being a partner of the Leith Banking Company, his estates could not be sequestrated at the instance of that Company, or any person representing it. A company is made up of its partners, and to allow it to apply for sequestration of one of its members, is, in fact, tantamount to sequestrating itself. No doubt, this plea in law was not raised in the Court below; but that is no objection,—at least to a remit, to have the point discussed.
Respondents.—This is an objection to the title; but objections to the title were repelled; and that interlocutor has not been appealed against.
Appellant.—The objection repelled was the objection to the title of the Bank to sue in the names of Ker and Johnstone. The objection now raised could not have been repelled, for it was not made in the Court below. The omission to appeal against the interlocutor was merely accidental; and, at any rate, the other interlocutor sustaining the title is appealed from; and thus the appellant is quite in form.
The House of Lords accordingly ordered and adjudged that the interlocutors complained of be affirmed.
Solicitors: Alex. Gordon— Moncreiff, Webster, and Thomson— Solicitors.
_________________ Footnote _________________
* 7 Shaw and Dunlop, p. 438.
