Scottish Court of Session Decisions

Subject_1 MEMBER OF PARLIAMENT.

Sutherland
v.
Sutherland

1751, Feb. 8.
Case No. No. 52.

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Swinzie complained of the freeholders of Caithness, for refusing to enrol him at Michaelmas 1749. Their chief defence was, that his lands of Risple (Reisgill) were valued in cumulo, and jointly with the lands of Langwell, which hold of Breadalbane, (how of Ulbster) and had been most irregularly and iniquitously divided by a meeting of the Commissioners of Supply in June 1749, so as of L.800, at which both estates stood valued, Reisgill was by them valued at L.421. 5s. 6d. and Langwell, though of much greater real rent, was valued only at L.378.14s. 6d.;—for setting aside which valuation a reduction apart was raised by Langwell, which came before me, and the complaint being delayed till that reduction were finished, I reported it this day. There were sundry reasons of reduction; and as the case appeared to me, the division of the valuation was very iniquitous. But as an objection was made to our power or jurisdiction to review the acts or proceedings of the Commissioners of Supply, I reported only that declinature, together with one reason of reduction which we behoved to judge, though the declinature were sustained, viz. that the persons who made the division could not act as Commissioners of Supply in 1749. As to the declinature, the pursuer insisted on our general power as supreme Judges in all civil causes; 2dly, Our power with respect to the old taxations; 3dly, A clause in the act of convention 1667 in fine. Answered, the valuing of lands was no civil cause at all, and the Commissioners were a commission of Parliament, appointed occasionally, or from year to year, to perform a certain office which no person has any power to do but in virtue of that commission, and is quite different from the method of levying taxations imposed by the old extent, and proportioned by the respective superiors and vassals, and the Bishops and other Clergymen, and their vassals, among themselves, without any commission of Parliament; and the act of convention 1667, in the clause referred to, is only an order to the Commissioners to bring in such part of the former taxation as was not then brought in, and adds a very necessary clause, in case any suspension of that tax had been passed, that these suspensions, should be first discussed, but no suspension of Cess is allowed. As to the foresaid reason of reduction, there are two clauses in the act, one of them authorizing the persons therein named, or such of them as had qualified, or should qualify to be the Commissioners, and then after some other clauses, there follows a proviso, that none of them should act in execution of that act till he should first take the oaths of allegeance and abjuration, under the pain of L.20 sterling; therefore Swinzie alleged that these Commissioners had before qualified, and therefore were by the first clause appointed Commissioners; and though they did not qualify in virtue of the act 1749, their proceedings were not void, and they were only liable in the penalty, for the act says no more, et ubi lex pænam statuit lex pæna contenta est. The Lords were divided as to the declinature. Kilkerran was clear for repelling it, because sundry other rights depended on valuations besides the Cess, not only elections to Parliament, but heritors interest in division of commonties, and others. On the other hand, President seemed to think that we had no jurisdiction, though he saw many inconveniences from finding so, and was willing, if possible, to wave deciding it; and I inclined to the same opinion, though I saw the same inconveniences. Therefore they proceeded to the other reason of reduction, and found that these Commissioners not having qualified, by taking the oaths in execution of the act 1749, were not capable to act in dividing the valuation, and sustained that reason of reduction, me tantum renit. and in respect of that judgment, they on the other question dismissed Swinzie's complaint, and found him liable in the penalty of L.30 sterling. 25th June, Adhered.