Scottish Court of Session Decisions

Subject_1 MEMBER OF PARLIAMENT.

Innes of Sandside
v.
Sutherland of Swinzie

1753, June 28, Aug. 3.
Case No. No. 58.

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Sutherland of Langwell estate in Caithness was at a re-valuation valued at L.800. He died in 1708, and left his lands of Langwell (or Borrisdale) to his daughter of a first marriage, and his lands of Reisgill to his daughter of the second marriage, and as the difference betwixt the rent of the two estates was not thought very great, being by a rental shewn us only about L.70 Scots, the two daughters, and their husbands, paid the Cess equally, and the Collector stated them so in his accounts. Langwell held of a subject, but Reisgill held of the Crown; and Sutherland of Swinzie, the son of the second daughter, wanting to be on the roll of freeholders in 1749, applied to the Commissioners of Supply to divide the valuation of the two estates, and they, on a sort of proof taken, valued Reisgill at L.421. 6s. 4d. of the L.800; but notwithstanding thereof, the Barons having refused to enrol him, he complained to us; and at the same time Langwell pursued reduction of the division;—and we reduced the decreet in the process at Langwell's instance, and dismissed Swinzie's complaint against the freeholders, as marked by me 8th February 1751, (No. 52.) Whereupon Swinzie applied again to the Commissioners of Supply: A new proof was led, and the two parties coming to a better understanding, they transmitted it to be laid before their lawyers, to prepare a state, and get their joint opinion: The agents made a state, and got the lawyers opinion (Messrs Lockhart and Ferguson) that the two estates were precisely of the same extent of rent, without one farthing of difference, so that each should be valued at L.400; and the Commissioners approved of this report; and then the freeholders enrolled Swinzie; but Innes of Sandside opposed it at the meeting, and then complained to us. His objections were two, first, that the meeting of the Commissioners was no lawful meeting, because the act of Parliament appointed the first meeting to be 4th June 1751, to chuse their Collector, Clerk, and Convener, and with power to appoint subsequent meetings, whereas the act not coming in time, there was no meeting till the 28th June, and thereby the commission fell, and they could make no adjournments. To this objection none of us had any regard. Necessity has no law; the case frequently happens, and the consequence would be, that no Cess could be levied that year. The second reason was gross iniquity and partiality in the Commissioners, colluding with the parties in judging not only without evidence, but against evidence, in order to make each estate L.400, and mentioned several particulars. Answered, This division was superfluous, for the valuation was already divided, each party having paid Cess for L.400 since Langwell's death in 1708, and they were so stated in the Collector's book, and if there were no valuation-book extant, as in some shires there is not, there could be no other rule, and if there was any error, the Commissioners could not rectify it. 2dly, The decreet quarrelled bore a production of a rental of both estates signed by Langwell, and which was in the hands of the Sheriff-clerk, and was the rule of making the valuation 1701, where the free rent of Reisgill is stated at L.772. 10s. 10d. and that of Langwell at only L.704. 8s.; and were a division now competent, it should be in proportion to the rent in 1701, whereby Swinzie's valued rent should be above L.400, and therefore Sandside has no reason to complain. 3dly, Not competent to this Court to review valuations, or divisions of valuations by Commissioners. 4thly, Were it competent, it could only be by reduction. Replied, When the two estates divided, both were liable for the Cess of the whole L.800; and if, till by a division of the valuation, it should appear what was their respective proportion, both heritors agreed to pay equally; or if Swinzie, desirous of a qualification to vote in elections, was willing to pay a few shillings more than his proportion, and Langwell, who could have no vote, found it his interest to agree, and the Collector, who neither knew their proportions, nor had any interest in the question, took his whole Cess from either of them that pleased, such payment for 100 years would not make a division of the valuation, which can only be done by the Commissioners; and though if no other book were extant but the Collector's book of accounts, it could not appear that ever they had been jointly valued, and it behoved to be held for the valuation book, yet it cannot be so where the book is extant; and it appears that neither the parties nor the Commissioners thought this a division, since in 1749 Swinzie got his lands valued by the Commissioners at L.421. 6s. 4d. To the second, There is no evidence that the rental produced was the rule by which the Commissioners made the valuation 1701, nor does it agree with the rule and proportion observed by them in the county, as appears by their report in Parliament. 2dly, Were it the rental produced before them, yet where an estate is valued, and part of it perishes by overblowing of sand or inundation, or the rents vary, or grounds that paid no rent are improved, or a lake drained, and then the valuation comes to be divided, the rental at the time of division must be the rule, or in some cases the Cess will be lost, and in others there will be farms that pay no Cess. 3dly, At no rate can that rental justify this decreet of division, because it is toto cœlo different from it. To the third, This question first occurred between Langwell and Swinzie, 8th February 1751, quod vide (No. 52.) and the Court waved the decision of it, but they decided it 12th February 1751, between Sir John Gordon of Invergordon and Sir John Gordon of Embo, (No. 53.) and found the Court competent, and set aside the valuation, which also they did in effect in March last, betwixt the freeholders of Caithness and Sir Robert Gordon and others, allowing a proof of rents said to be omitted to be proved before the Commissioners, which could not be done if the Court had no jurisdiction to review. To the fourth, If reduction were necessary, that could not be before the freeholders, who therefore would be bound by the decreet, however grossly injurious and partial, and therefore there could be no cause to complain of them, and very often there would be no party that had interest to reduce. In this case Langwell colluded with Swinzie, and therefore won't quarrel the division; and the other freeholders, that have no interest in either of the two estates, have no proper title to reduce it. These are the arguments used either by the Bar or the Bench, for they were not all pleaded by their counsel;—and it carried five to five to dismiss the complaint. For the interlocutor were Drummore, Strichen, Kilkerran, Karnes, Justice-Clerk. Against it were Milton, Elchies, Murkle, Leven, and Minto, but he was in the chair, and had no vote. 20th July Altered, and sustained the complaint, when Kilkerran was in the chair, and Murkle absent, but Woodhall for altering. 3d August Adhered.