An act of indemnity was found to liberate one from a spuilzie, who had taken some horses for his Majesty's service.
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Greenlaw being pursued by——, for spuilzie of two mares, in May 1654, alleged absolvitor, because he was then in arms for the King, and took these mares for the service, and had warrant from his officers, which he offered him to prove by his pass, and capitulation produced, expressly including him, with his officers, who capitulated.—The pursuer answered, The mares were great with foal, and altogether unfit for the service; and if they were specially commanded to be taken, it might be instructed by writ.
The Lords, considering this capitulation, being about that same time, found, That albeit there had been no order, yet the defender being then in arms, acting modo militari, the act of indemnity freed him, and would not give occasion to such process, and therefore assoilzied.
