Gray and Others, His Majesty's Feuers in Orkney, v. Sir James Steuart of Burray, &c
Date: 5 June 1741 Case No. No 40.
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Found that different parties could not accumulate their actions in one libel, unless they had connection with one another in the matters pursued for, or had been aggrieved by the same act; but that the procurators for the pursuers had their choice in whose name the process should proceed.
Should the parties differ among themselves, who should have the choice, it is thought if could of right pertain to no other than the first named in the summons.
Fol. Dic. v. 4. p. 147. Kilkerran, (Process.) No 3. p. 434.*** C. Home reports this case:
These feuers brought a process against Sir James, &c. charging him particularly with exercising over them, by himself, his tenants, or servants, a certain authority and jurisdiction, to which he had right; particularly, 1mo, For claiming a right to enter their possessions, and for breaking open doors, seizing their persons and goods, confining their persons and detaining their goods; 2do, For Employing officers called Ranselmen to seize their persons and goods; 3tio, For compelling them to labour his ground, and, upon their disobedience, poinding their goods; 4to, For compelling their servants, without their consent, to leave their masters, and to serve such other persons as he think propers; 5to, For assuming an authority to settle the limits betwixt his property and theirs, with a variety of other articles.
Pleaded for Sir James, and the other defenders, That it was against, the principles of law and justice, that so many pursuers, having no earthly connection with one another, should be allowed to associate themselves, and, as it were, to club the several injuries they pretend to have received from one, or more persons and by throwing these into one libel, to rear up so vexatious a prosecution.
Answered, It is true, that, by the common law, the accumulation of many actions into one libel was reprobated, because of the particular forms to be observed in every action; yet that subtilty does not maintain in our practice, our rule being quot articuli, tot libelli; witness actions against debtors, where 100 persons are convened in the same libel upon different media. Nor is there any rule of law for distinguishing betwixt the case of the pursuers and the defenders. It is well known, that, in the Court of Justiciary, the same person is accused in one libel of a variety of crimes. See the act of sederunt, 23d November 1711; and a late case, Inhabitants of the Canongate against Bailie Jack. See Appendix.
Replied, Sir George Mackenzie observes, It is a specialty in our law, that not only more debtors may be pursued in one summons, but that many different conclusions may be accumulated in one libel against one and the same person: A very superfluous observation, if it were law, that as many different persons may pursue as many different actions as they have grounds of complaint against one or more persons, especially where there is not the smallest connection, either in persons or things. Is it not a great hardship to be distracted at one and the same time with such a multiplicity of different actions, all of them thrown into one summons? How is it possible to prepare counsel upon such a variety of different points? The practice of the Court of Justiciary affords no argument; for there the King's Advocate is, properly speaking, the prosecutor ad vindictam publicam; and even there, if the crimes are so many that they cannot be easily concluded in one sederunt, it is usual for the Court to divide the trial.
The Lords found this action not competent at the instance of so many pursuers, but allowed the process to proceed at the instance of any one of them, and ordained the procurators for the pursuers to make their election.
And, upon a reclaiming petition and answers, the Lords adhered, with this qualification, that where one or more persons complain of the same act, or acts of oppression, whereby he or they were affected, they may maintain their action upon this summons.
