Forfeiture of a Sub-vassal. - Effect of Rebellion. - Misnomer.
John Strachan, late Tenant in Redfoord, v. Lieutenant Archibald Maclauchlan
Date: 26 February 1752 Case No. No 57.
An officer of the army seizing, during the rebellion, a person's goods who is suspected of being concerned in the rebellion, and on that account made prisoner, and disposing of these goods for the use of the army, is, by the acts of indemnity 19th George II. freed from all action at the instance of the proprietor, although dismissed from prison without being brought to a trial.
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Information having been given to the officers commanding his Majesty's troops, who were in pursuit of the rebels in 1746, that John Strachan had been in the rebellion, they ordered him to be apprehended, and his goods to be seized. Accordingly, on the 26th of February 1746, Lieutenant Maclauchlan, with a party of soldiers, apprehended Strachan in his own house, seized all his horses, cattle, and sheep, and carried him prisoner to Aberdeen; and the goods were delivered to the Commissary for the army; who, by orders from the general officers, sold them, and accounted to the government for the price. Strachan remained prisoner for some months, but afterwards was dismissed.
He brought an action of spuilzie and damages against Lieutenant Maclauchlan; and insisted, That he had continued loyal during the rebellion, and was living peaceably at home when the spuilzie was committed; that therefore, though the acts of indemnity might extend to justify the apprehending suspected persons, pressing horses, carriages, &c. for the King's service, entering houses, quartering soldiers, and such like, during the rebellion, yet they could never justify the robbing an innocent person of all his effects.
Answered for the defender, That it was the duty of the officers of the army to apprehend the persons, and seize the goods of all concerned in the rebellion; and in the discharge of that duty, it was impossible in every instance, to avoid committing of mistakes; that it was chiefly to secure them from the consequences of such mistakes that the acts of indemnity were made. This is evident from the generality of the words of these acts. It is not necessary to prove the pursuer's accession to the rebellion. It is sufficient that he was suspected thereof, and that the officers were so informed; and that the goods were seized, “with an intention to suppress the rebellion, for the preservation of the public peace, or for the service and safety of the government;” and were not converted to the private use of the seizers, but were disposed of on account of the public; that as the pursuer can have no action for wrongous imprisonment, so neither can he have any for the seizure of his goods.
‘The Lords found the defender entitled to the benefit of the acts of indemnity; and therefore sustained the defence, and assoilzied.’
Reporter, Lord Milton.Act. Ja. Ferguson, Lockhart, and Burnet.Alt. Ro. Craigie, Ja Dundas, & Bruce.Clerk. Kilpatrick.
Fol. Dic. v. 3. p. 233. Fac. Coll. No 8. p. 12.
