Page:The Green Bag (1889–1914), Volume 15.pdf/487

 442

raised for the forces of the Pretender in 1745. John Murray of Broughton, the Secretary of the Pretender, drew bills on the tenants of land belonging to Jacobite lairds, got them accepted by the tenants, and en dorsed them for value. The bills were not for payment of money, but for delivery of produce, then the usual form in which farm tenants paid their rents. Some of the bills, or precepts as they were called, were dis honored, and the holder sued Murray as drawer and endorser. The Court refused him recourse against Murray, holding that in discounting the bills he knew he was pro viding money for the rebel army, a practice which, of course, they did not look on with favor. From another case we learn how loyalists who had suffered loss of property in the re bellions were compensated. The estates of the rebels were forfeited, and transferred to commissioners who issued debentures pay able out of the prices of the forfeited estates when sold, equal to the amount of damage established by loyalists. Haldane of Gleneagles and his brother received a debenture for £2502 on account of property burnt in Blackford and Auchterarder, and purchased another debenture for £1831 on account of property burnt in Crieff, Muthill, and other places. These debentures were secured on the forfeited estate of Earl Marischall. Hal dane sued for payment of interest on the de bentures after they had been long due, but the Court refused to award this, actuated, perhaps, by the sympathetic reaction which, after the Jacobite movement had been finally crushed, set in in favor of those .who had staked and lost so much for the unsuccessful side. Some estates were restored, and Earl Marischall, if not reinvested in his, appears at least to have been awarded the surplus of the price, rather than diminish which the Court strained the law against the charges mentioned.

The action of assythment is now no more than a legal antiquity, but in 1767 we find its scope and character were the subject of much discussion in the Court. It appears that while the tooth Regiment of Foot had been fighting the French in Martinique, Captain Colin Campbell of Kilberry had killed Cap tain Macharg, a brother officer, in a quarrel. For this offence he was cashiered by $en%<,iCe of court-martial. Captain Macharg's rela tives brought an action of assythment in the Court of Session. In the defence of Cap tain Campbell it was pled that assythment was a proceeding for infliction of a fine and not for payment of damages, and that Cap tain Campbell having already been tried and punished could be liable to no further legal proceedings for the same offence. Assyth ment was said, apparently with reason, to have been instituted to take the place of the right of private vengeance which early law allowed to the relatives of a murdered man, and to have been regarded more as a crimi nal penalty than as a civil reparation. His counsel quoted Balfour's Practicks to the ef fect that assythment was paid "to the kin, bairins, and freindis in contentation of their damnage and for pacifying of their rancor," and, Bankton who had laid it down that as sythment was given to the wife and nearest. of-kin, "that they might be reconciled to the manslayer." Captain Macharg's relatives, however, were successful in maintaining on the other hand that assythment was an ac tion for payment of reparation and not of a fine, and the Court remitted to the Lord Ordinary to fix the amount. The Reports contain, as one would expect, very full accounts of the historic Douglas cause which was finally decided by the House of Lords in 1796. As is generally known it was originated by the Duke of Hamilton, who sought to prove that a youth calling himself the son of Lady Jane Douglas, and as such heir to the extensive estates of the