JAMES NISBET v JAMES M'CLELLAND (Court of Session)

It appeared that Mr Robert Nisbet, the son of the petitioner, was a clerk to the bankrupt from September 1835 to March 1836; that in May, the bankrupt sold the benefit of a lease of a distillery and stock on hand, at Helensburgh, to Mr Robert Nisbet, for L.150, and that the money so received, along with sums which had been drawn at the brewery for several previous days, was paid over by the bankrupt to the petitioner, in extinction in so far of the debt due. From Mr Robert Nisbet's deposition, it appeared that the money had been lent him by his uncle, Mr Thomson.

Against this interlocutor on the competency, and against the admissibility of various interrogatories which were afterwards put in the course of the proceedings which followed before the Sheriff, but which it is unnecessary here to mention, the petitioner presented the present petition and complaint.

Lord President .—Instead of proving any connection in business between the petitioner and the bankrupt, it appears that there was a payment made by the latter to the former of L.50, on condition that no connection should exist between them. In my opinion you might just as well examine any of the parties who came and made purchases in the shop of a trader, who afterwards became bankrupt, as the present petitioner.

Lord Gillies .—I concur. I am quite satisfied that all that could be said, has been said, on the part of the defender, and I think the interlocutor of the Sheriff a very able one. But if this party is to be examined, as being connected in the business, I think any person who has ordered his tailor to pay his accounts for him, a very common practice in London, might just as well be examined on the bankruptcy of the tailor, as a person connected with his business.

The Court, however, were of opinion that the trustee, having a strong opinion of the Sheriff in his favour, was acting bona fide in making the application, and could not be found liable in expenses.