Where goods have been seized manu militari in times of intestine war, who liable?
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The Lord Renton, Justice Clerk, having pursued Lamerton as representing his father, for the pursuer's rents and goods intromitted with by the defender's father in anno 1641, the defender excepted upon the act of pacification in anno 1641, and upon the act of indemnity in anno 1661, and produced his father's commission by which he meddled; so that having done by public authority for the time, in relation to the war and differences of the time, he was secured by both these acts. The pursuer answered, That the act of pacification and that whole Parliament was rescinded, and the act of indemnity had an express exception of all that meddled with public monies of fines, forfeitures, or sequestrated estates, and had applied the same to their own use, and had not duly counted therefor; and the pursuer insisted for what the defender's father had applied to his own use, or had not duly counted for. The defender duplied, That his father had duly counted for his whole intromission, and had made faith to the Committee of Estates; particularly, that he had truly given up his charge without omission, and thereupon was discharged. The pursuer answered, That he had instructed much more intromission, and was content to allow the particulars in the count produced, and craved the superplus, which he had now proved by witnesses adduced before answer; and as for the oath, it could only be understood as an oath of credulity, like that of executors confirming testaments, which doth not exclude probation of super-intromission; and there being two counts produced, the charge of the last count is the rest of the former count, and the oath relates only to the last count.
The Lords repelled the defence upon the act of pacification, which they found was only unrescinded, in so far as it is contained in the late act of indemnity; and repelled the defence upon the act of indemnity, in respect of the exception; and found that the father had not counted duly for his whole intromission, and that his oath extended only to the last count; and having considered the testimonies of the witnesses, they made a difference betwixt what umquhile Lamerton applied to his own use, and what corns and cattle were carried away by soldiers by his direction to the army, that he might be free of the latter and liable for the former.
1668. July 28.—This day the Lord Renton's process against Lamerton, mentioned the 21st instant, was advised; by the probation it appeared that the corns in the girnels of Haymouth, and the cattle in the Mains of Renton and horses were taken away by Lamerton with a troop or troopers; and that the corns were carried to Dunse, the army being thereabout at that time; whereupon the question arose, whether or not Lamerton were liable for these, which by the probation did not appear to be applied to his use, but to the use of the army.
The Lords assoilzied him therefrom, as they had done in several cases formerly upon the act of indemnity, whereby whatsoever was acted in the troubles by warrant of any authority in being, was totally discharged; and the Lords did thereupon find, That the actors were not obliged to produce, or show a warrant, but that it was enough the deeds were done manu militari, unless the contrary were proved by the actor's own oath, that what was meddled with was not employed to entertainment of soldiers, or any other public use, but to their own private use.
