Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Campbell of Barbreck v. Stuart, Tutor of Appine
Date: 26 November 1696
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Halcraig reported Campbell of Barbreck against Stuart, Tutor of Appine, being a charge on a decreet of depredation for 8000 merks Scots his clan robbed in 1685. His reasons of reduction and suspension were, 1mo. That he could not be answerable for these men, though his dependers and dwelling on his ground; because the Marquis of Athole being then constituted the king's lieutenant in Argyle, he called out the Highlanders; which freed the chieftains and heads of the clans from their obligation of what spuilyies their men should commit. 2do. It was in the time of war, when the country was broken, when it was impossible for them to restrain their men.
Answered,—Though the Marquis of Athole commanded in chief, yet the Highlanders came forth under their respective clans, and particularly Appine's men followed the Tutor, (the laird being then minor,) so this could no way exoner them. To the second, What is plundered in the time of war falls under restitution, as well as what is taken away in time of peace, unless they be able to subsume and prove it was brought to the camp, and consumed for the use of the army, and so spent in the public service; otherwise it is presumed they have been converted to their own private use, and so must refund.
The Lords sustained the decreet, and repelled the reasons; especially seeing the decreet bore a proclamation was issued forth, commanding them all to their own homes, seeing Argyle's forces were dissipated, and this depredation was committed after. Yet see Stair, 25th June 1664, Farquharson against Gairdner; and 15th February 1666, Gordon against Gordon; where the Lords would not presume acting without order and commission to loose an act of indemnity.
