United Kingdom House of Lords Decisions

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.

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