John Warrand and John M'Donald v. William M'Pherson
Date: 2 July 1757 Case No. No 21.
The transacting theft, but not concealing the crime, found not to be theft-boot.
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John M'Donald having been robbed on the highway by Evan M'Pherson, for which Evan M'Pherson had been imprisoned, but liberated upon bail, William M'Pherson, a friend of Evan's, a few days after the bail, granted a bond for L. 26 to John M'Donald, which was the value of the goods lost, and of the expenses M'Donald had laid out in finding out the robber. In consideration of which, John M'Donald granted a disclamation of the following tenor:
“I John M'Donald, chapman in Stratherick, do hereby disclaim all action, instance, and execution that may be competent to me against Evan M'Pherson in Gargask of Badenoch, for and on whatever account, preceding this date; and particularly any criminal action that I might have against him, the said Evan, for and on account of a robbery and atrocious riot and attack committed by him upon my person, and merchant-goods, on the King's high-road, in the hill of Corrieyarrick, on the 4th June last, with all that may be competent to follow thereon, for now and ever.”
M'Donald, neither before nor after this, ever made any secret of the robbery; and Evan M'Pherson was afterwards tried, condemned, and executed for the crime, at the instance of the King's Advocate. M'Donald being cited, appeared as an evidence against him in the trial.
In an action at the instance of M'Donald, and Warrand, his assignee, against William M'Pherson, for payment of this bill of L. 26 Sterling, it was objected by William M'Pherson, That, in the above transaction, M'Donald had been guilty of theft-boot, and thereby had forfeited any claim upon the bill in question.
Answered for M'Donald; To make theft-boot, not only the transaction of a crime is required, but also the concealment of it, so as to be assisting in the defeat of justice, or putting the thief frae the law, as the act James V. Parl. 1. cap. 2. expresses it. But here M'Donald only took payment of what he had himself lost; and he was so far from concealing the crime to defeat justice, that he told it to all the world.
‘The Lords found, that action lay on the bill.’
Act. Montgomery, Lockhart.Alt. John Dalrymple, And. Pringle.
Fol. Dic. v. 3. p. 177. Fac. Col. No 33. p. 56.
