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One who went with the King's army to Bothwel, having, about two hours after the defeat, plundered some horses out of a house, about two miles from the place, and being pursued for a spuilzie, he alleged, That what he did was by occasion of war, and fell under the act of indemnity.
The Lords repelled the defence, unless it were proved that the pursuer had been then a rebel.
Harcarse, (Spuilzie) No. 856. p. 244.*** Fountainhall reports this case:
1682, March 1.—In the case of Mr. John Kincaid, advocate, against ——, “the Lords found the act of indemnity in July, 1679, did not discharge this spuilzie of horses now pursued for, seeing they were not taken tanquam præda hostilis in flagrante bello, but the next day, two miles from Bothwel-bridge, the place of the battle; and it was not proved that they belonged to any who were in that rebellion.”
