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The Earl of Kintore and Mr James Keith v Home of Ninewells, Auchterlony, and Coutts. [1693] 4 Brn 92 (15 November 1693)
URL: http://www.bailii.org/scot/cases/ScotCS/1693/Brn040092-0213.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
The Earl of Kintore and Mr James Keith v. Home of Ninewells, Auchterlony, and Coutts
Date: 15 November 1693
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Mersinton reported the cause of the Earl of Kintore and Mr James Keith, against Home of Ninewells, Auchterlony, and Coutts, conform to the new Act of Parliament in summer last, by reading the minutes, signed by both parties' advocates.
The defence was a declinator of the Lords as incompetent; it being a question about a part of the King's revenue, (the retoured and non-entry duties of Falconer of Newton's lands,) which was only proper for the Exchequer, by the Act of Parliament 1633; seeing there was no competition between parties in point of right here, and that the precept bore capiendo securitatem.
Answered.—The nature of the debt was here innovated by taking a bond of corroboration; and it was not taken in Sir Thomas Moncreiff the cash-keeper's name, but in the Sheriff-depute's; and it was no more the King's, being gifted to Kintore for his salary as Knight-marshal; and, by this rule, all wards, nonentries, and marriages, and such like casualties of the Crown, might all be claimed to be judged privative by the Exchequer.
The Lords, by plurality, found this case more proper to be judged by the Exchequer, and remitted it thither; but, in regard the charge of horning proceeded upon letters raised before them,—lest they should go on to denounce upon that charge, they declared that diligence null, for securing the suspenders medio tempore.
