Scottish Court of Session Decisions

Subject_1 COMMUNITY.
Subject_2 SECT. I.

How far a Community is bound by the Deeds of its Magistrates, or liable for their delicts.

James Walker Charger,
v.
James Cumming, Deacon of the Fleshers of Edinburgh, Suspender

Date: 11 January 1744
Case No. No 10.

This seems to be the same case with the above.

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Anno 1715, the charger lent 100 merks Scots to the then deacon, box-master, and masters of the said incorporation of fleshers; and having charged James Cumming, the present deacon, on the bond, for payment, he offered a bill of suspension, on the following grounds; 1mo, Because, though the debt charged on may be justly due by the incorporation, yet no diligence ought to proceed against the suspender's person or effects, unless he had the incorporation's money in his hands, or refused to uplift, recover, or dispose thereof, for payment of the debt charged on, which is all that any office-bearer is bound to do, unless fraud can be made appear against him; more especially, as this debt was contracted twenty-eight years before the suspender was a member of the incorporation.

Answered; By the tenor of the bond, the persons therein bound, bind and oblige themselves, and successors in office, conjunctly and severally, to repay the money to the charger; which clause must subject all the members of the incorporation, whether they were members at the time of granting the said bond, or became so afterwards, not only to repay the money, but to make them liable to personal diligence. The members of an incorporation can certainly bind their successors in office as validly as themselves; and if once a person enter himself a member of an incorporation, he is as much bound to fulfil the obligations of that society, although entered into by former members, as if he had entered into them himself. The incorporation is considered as one person; and though the member may change, yet the incorporation is still the same, and the members of it are as much subjected to its debts, as if they were contracted for their own private use; because they are as effectually hound in payment in the one case as the other.

That a clause should be inserted in a bond subjecting the present, and all future members to payment, and personal diligence, and yet not to give it effect, would be absurd, when it was upon the faith thereof the creditor lent his money. By becoming a member, the suspender has right to exercise his trade, and to enjoy all the privileges of the society; now, to have a right to these, and yet not be liable to the obligations of the incorporation, would be inconsistent. Besides, the members of an incorporation are in the very same state with heirs, who are reckoned eadem persona with the defunct, and are in the same manner liable to his debts, that they are to their own.

Replied; The charger endeavours to introduce a new passive title, altogether unknown in our law, viz. that every man, by becoming a member of an incorporation, is as much liable to the debts of the incorporation as an heir; but the error lies in not distinguishing among different sorts of corporations; e. g. when a set of men are incorporated, with a view to carry on traffic, and with power to borrow and lend, there is no doubt the present office-bearers may be sued for payment of money borrowed, as representing the incorporation; but, even in that case, the proper effects of the office-bearers will not be affectable by such diligence. His person may be thrown into jail, as representing the incorporation; but that is all the length that diligence can be extended against him. The effects of the incorporation may be attached for payment of the debt, but not the effects of any one member. The case of royal burghs will illustrate this, which is an incorporation holding lands of the King; and having, of course, a power to contract debt, the magistrates are liable, no doubt, to a summary charge for payment of any debt contracted by their predecessors: Nay, the creditor may proceed to incarcerate the magistrates, as representing the town; but nobody ever supposed that their own proper estates could be adjudged for payment of any such debt. But the present case is quite different; as this incorporation have a seal of cause, and are united ad bunc effectum only to bar any person from exercising that trade, without paying them a composition; and they have no power to contract debt qua incorporation; so that if any person lends them, he can have no action, but in so far as he proves that it was in rem versum of the society.

Duplied; The holding lands of the Crown, or a subject, can give no privilege to contract debt; and, that the having or wanting an heritable subject, will not in the least alter the obligation to repay; and so the present question will not depend on that principle. None of the royal burghs have a power in their charters to borrow money; and if they had, it would not be good, without it were confirmed by parliament. Such power does not depend on their grant, but on the members themselves: For a proof of this, the instance given by the charger, of a company incorporating together to carry on trade, and to borrow or lend, will suffice. The charger will not take upon him to say, there were any such express powers in this case, but the same thing has been done tacitly, and as effectually. Their giving authority to borrow, either by a sederunt in their books, or by their signing the bond, and continuing such a practice, is tantamount as if each had signed a formal contract, empowering their office-bearers to borrow.

The Lords passed the bill, upon the suspender's consigning a disposition to their effects.

C. Home, No 256. p. 412.