Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL
Subject_2 SUMMER SESSION.
Date: 12 March 1685

Robert White
v.
The Inhabitants of Dysert

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The case of Robert White, treasurer of the Town of Dysert, against the inhabitants thereof, was reported by Saline. The question was, the second minister of Dysert's stipend is lifted by a contribution and stent: in 1663, the magistrates grant bond to Doctor Honyman, then their second minister, for some arrears of it: and being made liable, not only ratione officii, but personally, and seeking their relief by assessing the inhabitants;—they alleged, that this stipend not being onus reale transiens in singulares successores, it could aftect none but those who had participated of the word and sacraments at the time it was due; and that nemo debet pro alieno debito molestari; and that many of the present burgesses were not then inhabitants; and they were in crassa et supina negligentia to let it lie over 21 years.

Answered,—That a community or incorporation is a corpus collectivum et aggregatum quod nunquam moritur, sed perpetuatur per subrogationem, as Mornacius speaks, ad I. 76 D. de Judiciis, where the words of Alphenus are very remarkable:—Populas idem hoc tempore putatur esse qui centum ab hinc annis fuerat, etiamsi nemo ex iis nunc vivat; for a societas est ex eorum numero which are spoken of in l. 30 D. de Usurpat. quæ licet ex distantibus corporibus constant, tamen uno spiritu et vinculo juris continentur. And Grotius, de Jure Belli et Pac. lib. —, cap. 9, debates, where a people change their form of government from a republic to a monarchy, et contra, if they must pay the debts contracted by the former state; and resolves it affirmative. And Le Bret. Plaid. 43, states our very case, If the new inhabitants of a parish ought to defray the debt contracted by the old inhabitants before they became members; and shows it was decided affirmative; nam quos sequitur commodum eos etiam sequi debet incommodum; et ipse burgus in universali suo tenemento stat; as Craig speaks, and gives it as the cause why they fall not in non-entry.

The Lords found, this burgh-royal being a society which never dies, the present inhabitants were liable to pay this debt though contracted before their entry.

Vol. I. Page 351.