Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by WILLIAM FORBES, ADVOCATE.

Sir William Craigie of Gairsey
v.
Sir Alexander Douglass of Egleshaw, and other Freeholders of Orkney

Date: 13 Dec 1710

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Sir William Craigie pursued Sir Alexander Douglass, and other freeholders of Orkney, to make payment of L9600 Scots, due to him for his fees as commissioner for the stewartry of Orkney to the several Parliaments betwixt the years 1681, and 1702, mentioned in a certificate of his attendance, under the hand of one of the clerks of Parliament.

Alleged for the Defenders,—All the inhabitants of the isles of Orkney and Zetland, erected by the Act of Parliament, 1669, into one stewartry, being liable for their proportions of the pursuer's fees, and none of the heritors of Zetland being cited; no process can be sustained against the defenders, till all parties having interest be in the field, that it may be known what every one's proportion is.

Replied for the Pursuer,—He was not bound to cite any heritors of Zetland, seeing none of these signed his commission, and he could not know that they had any interest in electing a Commissioner for Orkney: but the defenders must cite them, instruct their capacity to vote in such elections, and their being liable to commissioner-fees, and produce their valuations, before they can pretend to any proportionable deduction upon their account. Besides, the valuations of Orkney and Zetland, in order to proportion the cess, were distinguished by order of the treasury in the year 1693; and Orkney made to pay two parts, and Zetland a third: And the pursuer insists against the defenders only for two-thirds of his fees.

The Lords found, That Orkney and Zetland being one stewartry, the pursuer must call the freeholders of both Isles, and prove their valuations, so as each may be liable only for their own share. For it was thought that the valuations, in order to assessment, could not be a rule in this case; seeing those only who hold in capite are liable for the fees of Commissioners to the Parliament.

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