JAMES ADAMS v ROBERT AITKEN & Ors (Court of Session)

The petitioner Adams was employed by one Douglas, a creditor of Allan Scott, to present a petition for sequestration of Scott's estate. The bankrupt having refused to concur in this application, he was ordained by the Lord Ordinary to shew cause why it should not be granted. Of the same date, however, with this order, sequestration was awarded on the application of the bankrupt himself, with the concurrence of another creditor. The Lord Ordinary, therefore, found it unnecessary to record the former petition and deliverance.

Thereafter, Adams presented a petition to the Court, under authority of the act of Sederunt 6 Feb. 1806, praying for a remit to the auditor to tax his account of expenses incurred in the proceedings alluded to, and thereafter to find the trustee and certain creditors ranked in Scott's sequestration liable for the same.

The respondents maintained, that the application was incompetent, in respect the petitioner had not been employed in the business in question by any of them, but solely by Douglas, against whom the petition was not directed; Thorburn v. Stewart, 17 June 1825, S. & D. ; Malcolm v. Niven and Others, 5 July 1825, S. & D. ; Fisher v. Robertson, 25 June 1828, S. & D.

The Lord Justice-Clerk said—We would be departing from the act of Sederunt founded on, if, though the performance of the business is admitted, the employment and liability are denied, we were to allow the accounts to be taxed and decerned for in this summary form.

The other Judges having concurred, the application was dismissed as incompetent.