Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by ALEXANDER TAIT, CLERK OF SESSION, one of the reporters for the faculty.
Subject_2 SUMMARY APPLICATION.

Duncan Buchanan
v.
Captain M'Donald

Date: 9 August 1777

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Duncan Buchanan, land-labourer, was taken up at Glasgow, by a party of the 71st regiment, as a deserter ; they alleged that he had been enlisted at Perth, under the name of John Campbell, and had afterwards changed his name, and deserted. This Buchanan absolutely denied, insisting that, during the time condescended on when he should have enlisted, he had resided constantly at Stirling, attending a school there, and that he had never changed his name. Finding himself, however, unsupported, and hardily used in prison, he appeared before a magistrate, acknowleged the fact alleged, and engaged to attend the regiment.

Afterwards, however, having received encouragement to stand to his innocence, he preferred a complaint to the provost of Glasgow, insisting on the truth of his story, first above mentioned, and prayed to be liberate; and, in the course of this complaint, proofs were led of the identity of his person, amazingly contradictory. The provost being ready to pronounce judgment, Captain M'Donald, the officer against whom the complaint had been served, presented an advocation, which was passed and signeted, and the discussion put over till next winter; whereupon Buchanan presented a bill of suspension and liberation, which was intimated to M'Donald, and, at the same time, presented a summary complaint to the Court for damages.

The Lords refused it as incompetent.-9th August 1777.

It was alleged that, by the Mutiny Act, § 64, the Lords had sufficient jurisdiction to try matters of this sort; but then it appeared that it could not be in the way of a summary complaint, but of action. They refused therefore the complaint.

Action for damages was accordingly brought, which is still in dependence.

In complaints against messengers for malversation in office, it is competent, by summary application, to complain not only against the messenger but against their cautioners.

See Books of Sederunt, Forbes against Grant.