Subject_1 MEMBER of PARLIAMENT. Subject_2 DIVISION III.
The Qualification of Freeholders possessing Lands liable in Public Burden for L. 400 Scots.
Subject_3 SECT. V.
How a division of Valuation may be set aside. - Every Party interested in a division ought to be made a Party to it. - Erroneous division.
John Campbell, and Others, v. John M'Dowall
Date: 20 February 1787 Case No. No 82.
An objection to a decree of division of the valued rent pronounced at a meeting held in consequence of an adjournment made at a previous meeting, where, of five commissioners present, only one had taken the oaths, was repelled.
Click here to view a pdf copy of this documet : PDF Copy
The meeting of Commissioners of Supply that ascertained the valued rent of Mr M'Dowall's lands, in virtue of which he was enrolled as a freeholder in the county of Renfrew, had been held in consequence of an adjournment made at a previous meeting, where, of five Commissioners present, only one had taken the oaths to government.
A complaint having been, on this ground, preferred by John Campbell and others, freeholders in the county, against this enrolment, Mr M'Dowall
Pleaded; By the annual statutes respecting the land-tax, or supply, a failure on the part of the Commissioners to take the oaths to government has not been made an essential objection to their proceedings. It only subjects them to certain pecuniary penalties. Nor would such an objection, although founded on the statutes, be fatal to the valuation of the respondent's lands. As no precise number of Commissioners is required to constitute a meeting, a decreet pronounced even by one Commissioner duly qualified must, if intrinsically just, be quite unexceptionable.
Answered; As the Commissioners of Supply are required, before any proceedings are held, to take the oaths to government, this must be considered as a condition annexed to their appointment; otherwise, indeed, disaffected persons might intrude into this office. So accordingly it was expressly found, 22d Feb. 1751, Sutherland of Swinzie contra Sutherland of Langwell, No 5. p. 2436.
The other branch of the argument used in support of the proceedings in question, seems to be equally ill founded. The statutes make mention of a majority of the Commissioners, which evidently implies that the attendance of more than one Commissioner is necessary; and the practice of requiring the presence of five Commissioners, in those instances in which the Court of Session has interponed to authorise a meeting, shews in the clearest manner the opinion entertained on this head. Earl of Panmure and others contra The Commissioners of Supply in the county of Forfar, No 90. p. 8675.; Duke of Gordon contra The Commissioners of Supply of Banff, No 379. p. 7674.; Brown contra Hamilton, 6th December 1780, No 95. p. 8677.
The Lords were unanimously of opinion, That the Commissioners neglecting to take the oaths, was not a nullity in the proceedings; and that the case of Sutherland, in 1751, was erroneously decided. They also seemed to think that the presence of five Commissioners was not necessary, no such number having been specified in the statutes. It was farther observed, that as the decreet of division under challenge had been pronounced at the meeting of Commissioners duly qualified, the circumstance of its being held in pursuance of an adjournment, directed by a meeting at which the legal number of Commissioners was not present, could not afford a relevant objection.
As, however, posterior to the decreet in question, an act of indemnity had passed, by which the proceedings of persons acting in offices of public trust, without taking the required oaths had been ratified, it was unnecessary to determine the case on any of the grounds which had been insisted on by the parties.
Alt. Honyman et alii.Alt. Wight et alii.Clerk, Robertson.
Fol. Dic. v. 3. p. 412. Fac. Col. No 322. p. 495.
