Grants from the Crown. - Annexed Property. - Power of granting Jurisdictions. - Power of Revocation.
Kincaid and Others v. The King's Advocate
Date: 16 July 1751 Case No. No 14.
An accompt of furnishings to a forfeited person, after his estate had been vested in the Crown not sustained; and interest refused on accounts contracted before.
Click here to view a pdf copy of this documet : PDF Copy
Alexander Kincaid bookseller, and others, tradesmen in Edinburgh, claimed out of the estate of the late Lord Lovat, payment of their accounts furnished to him; in which action these questions arose, Whether they could claim payment for furnishings made after 24th June 1745, when the estate was vested in the King by statute? And, 2dly, Whether they could claim interest for furnishings before or after that time?
Pleaded for the Claimants; They were in bona fide to furnish Lord Lovat, who had not engaged in the rebellion, but was to appearance a loyal subject; and after the rebellion in 1715, a claim of Mrs Pitcairn on the estate of Winton, was sustained for necessaries furnished to the Earl in prison and on his trial; and the judgment affirmed by the House of Peers.
Interest is due for furnishings when payment is delayed; and this is no penalty, which by the vesting act is not due, but is the equitable right of the merchant.
Answered, No debt of Lord Lovat's, contracted after his estate was vested in the King, can be recovered out of it, as was found 8th November 1750, Baron against the King's Advocate, voce Forfeiture. There was a special statute after 1715, saving debts bona fide contracted after the time of vesting; interest is allowed to merchants nomine damni, which is a penalty for delay of payment, conventional penalties being considered as only liquidations of the damage, and restricted thereto if they exceed.
Replied, There is a difference betwixt a bill granted after the time of vesting which was Baron's case, and articles continued to be furnished, when the account begun before.
The Lords dismissed the claim for the articles furnished after 24th June 1745, and found interest not due out of the estate on any of the accounts; and dismissed the claim therefor.
Act. Hamilton-Gordon.Alt. Advocatus.
D. Falconer, v. 2. p. 267.
