Sutherland of Swinzie v. Sutherland of Forse; and Sutherland of Langwell v. Swinzie
Date: 22 February 1751 Case No. No 5.
The proceedings of Commissioners of Supply, who have neglected to take the oaths of allegeance and abjuration, conform to act 16th Geo. II. 1749, are null.
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The estates of Risgill held of the Crown, and Langwell held of a subject, had formerly belonged to one proprietor; and were jointly valued in the cess books at L. 600, but coming into different hands, Sutherland of Swinzie, heritor of Risgill, applied to the Commissioners of Supply of the shire of Caithness for the year 1749, and obtained a disjunction of the valuation; and his own lands valued at L. 421: 5: 6d, and thereupon applied to the Michaelmas headcourt to be enrolled as a freeholder, entitled to vote in electing a member of Parliament: Which was refused on the objection of John Sutherland of Forse, That the Commissioners of Supply had made an unfair and unequal division; for that that his lands were not of so great value as those of Langwell, and consequently ought not to be valued at L. 400. Swinzie thereupon gave in to the Court of Session a complaint against Captain Sutherland, in terms of the act made for that purpose, 16th Geo. II, and insisted that the court of freeholders could not review the proceedings of the Commissioners of Supply.
Answered, By shewing the unfairness of the decreet of the Commissioners, of which the freeholders were competent to cognosce, in order to enroll or reject the claimant; and of which Langwell was insisting in a reduction before the Court of Session.
2do, The Commissioners of Supply, not having qualified themselves, by taking the oaths, to entitle them to act under the act of Parliament, imposing the supply, their deeds were null.
The Lords superseded proceeding on the complaint till the issue of the reduction.
Sutherland of Langwell insisted in his reduction for the reasons foresaid.
Answered, The Lords are not competent to reduce the deeds of the Commissioners of Supply; who are a commission of Parliament, having these matters specially committed to them.
This question was not here determined; the matter going off on this reply, That the Commissioners, though having taken the oaths on other occasions, yet not having done it to qualify them to act upon this statute, their proceedings were null.
Duplied, The act having imposed a penalty on such as should act without qualifying themselves, their actings were not null, providing they were contained in the nomination.
The Lords, 8th February, found, that the Commissioners of Supply, by whom the division of the pursuer's and defender's valuation was made, not having taken the oaths of allegiance and abjuration, pursuant to the act of Parliament 1749 years, were not capable to act in the execution of that act, or to make the said division; and therefore found the same void; and reduced the said division; and dismissed the complaint.
Swinzie petitioned against the interlocutors in both causes, which the Lords refused.
In the Complaint, Act. Ferguson.Alt. Lockhart.In the Reduction, Act. Lockhart.Alt. W. Grant.Clerk, Justice.
Fol. Dic. v. 3. p. 137. D. Falconer, v. 2. No 204. p. 246.
