Scottish Court of Session Decisions

Subject_1 PRIZE.

Sutherland of Meikle Torbell
v.
Monro

Case No. No. 2.
1752, Feb. 28.

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Sutherland in April 1746, having by Earl Sutherland's order taken a good many cattle from M'Kenzie of Ardloch, Monro, as a creditor of his, pursued him for the value, and he having pleaded the indemnity;—replied, not good either as to cattle yet extant, or sold and whereof the defender retained the price. We found, that if Ardloch was engaged in the Rebellion, there lies no action; for we thought the property in that case was transferred in the same way as in justo bello; and as the pursuer seemed almost to admit that he was engaged, we went no further, but remitted to Strichen, Ordinary, to proceed accordingly. But if he was not in the Rebellion, we thought there lay a rei vindicatio of the goods extant, but as to cattle destroyed or sold, though the defender have the price, the President doubted, as I did, because the taking is not only pardoned, but justified and approved, and therefore there can be no enquiry into that fact. The Ordinary assoilzied him, and found no expenses. But on a reclaiming bill we found, 28th February, the pursuer liable in full expenses.