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.

Sir Laurence Dundas
v.
The Heritors of Orkney and Shetland

Date: 24 January 1777

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In the same process betwixt Sir Laurence Dundas and the Heritors of Orkney and Zetland, parties differed as to the meaning of udal lands. It was said, on the part of the Heritors, that udal lands are allodial lands; that they are enjoyed by the proprietors of them tanquam optimæ maximæ, without their being obliged to acknowledge any superior; and that their right was simple and unburthened. On the other hand it was alleged, That although the lands called udal lands are held without writing, yet nevertheless they are feudal holdings, and are liable in payment of a yearly duty called skat. And, although in a late process between the Earl of Morton, and a number of those udallers, an attempt was made to show that this skat was a tax or tribute, and not a duty paid in agnitionem dominii, yet no such thing was made out to the conviction of the Court, and they were obliged to continue the payment of their skat as formerly, in agnitionem dominii. See also Bankton, V. I., p. 544; and Erskine, p. 186. See Craig also. And it is worthy of being remarked, that when any udaller obtains a charter in Exchequer, the skat payable by him is made his feu-duty.

But, in arguing this point upon the bench, the Lords seemed generally of opinion, that udal lands were allodial. Lord Hailes, in particular, was of this opinion, and derived the word from the two words all and od, signifying plenum vel absolutum imperium.

With respect to these lands, the Lords, 10th August 1776, found, “That those of them who chose to take written investitures, have it in their option to take the same from the Crown, or from Sir Laurence Dundas, as they shall think proper.”

And, upon a reclaiming petition and answers, the Lords adhered.