Scottish Court of Session Decisions

Subject_1 PERSONAL and REAL.
Subject_2 SECT. I.

Debita fundi.

Mr Laurence Charters
v.
Parishioners of Curry

Date: 8 January 1670
Case No. No 5.

Singular successors are not liable for reparations bestowed on the minister's manse before they were heritors.

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Mr Laurence Charters, as executor confirmed to Mr John Charters minister of Curry his father pursues the parishioners for 1000 pounds for the melioration of the manse of Curry, conform to the act of Parliament 1661, which is drawn back to the rescinded act of Parliament 1649. It was alleged by the parishioners, absolvitor; first, Because the meliorations of the manse were long before any of these acts, which do only relate to meliorations to be made thereafter, and for any thing done before ædificium solo cedit, and it must be presumed to be done by the minister animo donandi, there being no law when he did it, by which he could expect satisfaction; 2dly, Several of the defenders are singular successors, and so are not liable for reparations done before they were heritors. The pursuer answered, that albiet these reparatsons were done before the year 1649, yet there being subsequent acts of Parliament, obliging the heritors to make the manse worth 1000 pounds, if these former reparations had not been made, the heritors of the parish would have been necessitated to make up the same, and so in quantum sunt lucrati tenetur. 2dly, The said acts of Parliament contained two points, one is, that whereas the intrant minister paid to his predecessor 500 merks for the manse, and his executors were to receive the same from his successor, the said acts ordained the heritors to free the successor, as to which the present heritors can have no pretence; and as to the allegeance, that they are singular successors, the acts oblige heritors, without distinction, whether they are singular successors or not.

The Lords found the Parishioners only liable for the 500 merks paid by the minister at his entry, and found, that at the time of the reparation, the Parishioners not being liable, were not then lucrati; and are not liable by the subsequent acts, which extend not ad præterita; neither did they find the singular successors liable, but that the heritors for the time were only obliged.

Fol. Dic. v. 2. p. 62. Stair, v. 1. p. 659. *** Gosford reports this case.

Mr Laureece Charters, as executor to his father, who was minister at Curry, pursuing the present heritor for payment of L. 1000 for building and repairing the manse, upon the late act of Parliament; it was alleged for some of the heritors, that they were singular successors, and could not be liable, seeing the said expenses were not declared to be debitum fundi, and a real debt, which the Lords did sustain; albeit, it was answered, that the act of Parliament ordains all heritors to be liable without distinction. 2d, It was alleged for those that were heritors, the time of the reparation, that they could not be decerned but only for 500 merks, which was the most that heritors were liable to the time of the said reparation, which was before the year of God 1649, at which time, by act of Parliament, it was extended to L. 1000. The Lords did likewise sustain this allegeance, and restrict the sum to 500 merks, notwithstanding it was alleged, that the charges were utiliter expended for the heritors, who after the act of Parliament 1649 might have been compelled to make the same.

Gosford MS. No 223. p. 89.