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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> John Anderson v Thomas Morton and Others. [1780] Hailes 872 (13 December 1780) URL: http://www.bailii.org/scot/cases/ScotCS/1780/Hailes020872-0548.html Cite as: [1780] Hailes 872 |
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[1780] Hailes 872
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 COMMUNITY.
Subject_3 Magistrates charged to pay a sum due by a Bond, granted by them in their corporate capacity, were found entitled to suspension without caution, on granting conveyance of, or security on, the Town's Funds.
Date: John Anderson
v.
Thomas Morton and Others
13 December 1780 Click here to view a pdf copy of this documet : PDF Copy
[ Faculty Collection, VIII. 176; Dictionary, 2514.]
Kaimes. This is not a corporation instituted with the power of borrowing money: they who borrowed must be liable, but not the office-bearers, who did not borrow.
Braxfield. I wish that the law stood so; but the truth is, that inferior corporations have power to borrow money. Decreet must go against the office-bearers, and they must make over the funds of the corporation.
Monboddo. Every body politic has a power of borrowing money, unless that power is expressly denied. Personal execution should go against the office-bearers, but time should be allowed to them that they may have an opportunity of stenting the members of the corporation.
[This passed at the first report, 18th November 1779, when a note of precedents was ordered to be given in.]
President. Quoted the case of the Butchers of Edinburgh, 1758 and 1761. They who signed the bond, and their heirs, were liable: the other members were not liable. The present deacon and box-masters were liable to the extent of the funds of the corporation, but no farther: here the creditor may attach the funds of the corporation.
Gardenston. Quoted the law of England, by which, as he said, the corporation was liable for a debt contracted in this way.
Hailes. Supposing that the law of England could influence the decision here, it would be fit to inquire, whether what with us is called a corporation when respecting artisans of any particular trade, is not in England called a company: and if so, rules respecting English corporations will not be applicable to companies.
Covington. This is no corporation for the purpose of borrowing money: the funds may be liable, but not the individual members.
Gardenston. Every one who has the commodum of a society, ought he not to be subject to the incommodum?
Braxfield. I would adopt the judgment in the case of the Butchers of Edinburgh, quoted from the chair.
On the 13th December 13th December 1780, “The Lords found that Morton and Alexander, defenders, are not personally liable; but that decreet must go against them to account for the funds of the corporation.”
Act. G. Ogilvie. Alt. A. Tytler. Reporter, Gardenston.
The electronic version of the text was provided by the Scottish Council of Law Reporting