Forfeiture of a Sub-vassal. - Effect of Rebellion. - Misnomer.
Sutherland of Meikletorboll v. Monro of Auchany
Date: 11 December 1751 Case No. No 56.
The Lords found that no action lay at the instance of a creditor of a rebel, who was comprehended in the act of indemnity, for the value of goods taken from him during the rebellion.
Click here to view a pdf copy of this documet : PDF Copy
Robert Sutherland of Meikletorboll, arrested in the hands of William Monro of Auchany, as debtor to Alexander Mackenzie of Ardloch his debtor, in the value of certain cattle carried off his grounds by him, and pursued a furthcoming.
Answered, Ardloch was concerned in the rebellion, and information being given to the Earl of Sutherland, sheriff and lieutenant of the county of Sutherland, that he was in May 1746, in the neighbourhood of his own estate, in that county with a body of men in arms, the Earl ordered Auchany to drive away these cattle, to distress him and the rebels, which he did; and the cattle being disposed of by the Earl's order, the defender is liable to no action for what he did at that time for suppressing the rebellion; but is justified by the act of Parliament made to that end.
Pleaded for the pursuer, He knows not that Ardloch was concerned in the rebellion; which if he was, is a matter that cannot be properly enquired into now, as he is indemnified; he is therefore fully re-instated in all his former rights; he has property in his effects, and action for recovery thereof; the pursuer is not insisting against Auchany for the penalty of spulzie, or for the value of cattle intromitted with, and employed for the public service, or even disposed of by order; he might defend himself for these acts, as being done against a rebel in open hostilities; or if that was not the case, upon the indemnity, if the fact was committed for suppresssng the rebellion; but this is a pursuit for cattle, still in his possession, or what he has converted to his own use; and the indemnity was never intended for defending any person in converting to his own use the property of another, either innocent, or who must be held as such.
Pleaded for the defender, It is a material fact that Ardloch was in the rebellion; as in that case it was just to make war against him, to seize his effects, and he can have no action for recovery thereof; if the effects of a good subject should be seized for suppressing the rebellion, he might vindicate what of them were extant; but he could have no action for the value of any not extant, because the intromitter was justified by the indemnity; and it might be doubted whether he was not excluded from any action for the value of what was used or disposed of, though by the intromitter for his private use, which was indemnified; but the goods of a rebel were lawful prize; at least though vindication should be competent, there could be no action for the value.
The Lords found, that if Ardloch was concerned in the rebellion, no action did ly.
Reporter, Strichen.Act. Lockhart.Alt. H. Home.Clerk, Forbes.
Fol. Dic. v. 3. p. 233. D. Falconer, v. 2. No 247. p. 302.
