Mitchel v. The Commissioners of Excise, and Bervie
Date: 27 January 1743 Case No. No 306.
Competitions with writs of extent are cognizable only in the court of exchequer.
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James Stark, collector of excise at Kirkcaldy, according to the usual way of collectors remitting the public money, gave L. 200 Sterling to John Bervie. merchant in Kirkcaldy, for which he got a bill, drawn by Bervie upon Patrick Manderston merchant in Edinburgh, payable to the commissioners of excise. Shortly after Manderston's acceptance, his affairs going into disorder, his creditors arrested and pursued furthcomings before the Sheriff of Edinburgh, in which the commissioners appeared and produced an extent, comprehending the debts owing by the arrestees; and the Sheriff having preferred the Crown, the arresters presented a bill of advocation, which the Lords found 'incompetent; and therefore refused the desire of the bill.'
N. B. The Sheriff had expressed his interlocutor wrong, when thereby he 'preferred the commissioners,' What he should have done was only to refuse to give decree of furthcoming in respect of the extent; but he was in the right in the main, and the application of the arresters should have been to the Exchequer, and not to the Court of Session; for all competitions with extents are only cognoscible in Exchequer.
Fol. Dic. v. 3. p. 256. Kilkerran, (Jurisdiction.) No 2. p. 306.
