How far a Community is bound by the Deeds of its Magistrates, or liable for their delicts.
Cumming v. Walker
Date: 11 January 1742 Case No. No 9.
The office-bearers of a corporation which has no power to borrow money, are not liable to execution for the debts that happen to be contracted.
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James Cumming, being chosen deacon of the butchers of Edinburgh, was charged with horning for payment of the sum in a bond, which had been granted some time before by the office-bearers of the corporation to James Walker, in the following terms: “We the said Archibald Brown, &c. bind and oblige us, and our successors in office, conjunctly and severally thankfully to content and repay to the said James Walker.” In a suspension of this charge, the case was considered with regard to two different sorts of corporations; one, where there is a power to borrow money, the other where there is none; and, with regard to both, the reasoning was as follows: When a set of men are incorporated in order to traffic, with express powers to borrow and lend, there is no doubt that the present office-bearers, as representing the incorporation, may be sued for payment of money borrowed by their predecessors in office. The reason is obvious; that there is no form for bringing a corporation into a process, but by citing the office bearers. And, for the same reason, when a bond is granted binding the office-bearers, and their successors in office, the successors may be summarily charged upon the bond; a charge being the only compulsion provided by law to oblige the corporation to do justice to the creditor. But, even in that case, the proper effects of the office-bearer will not be affectable by such a diligence; all that can be done is, to throw him into jail, as representing the incorporation. The effects of the incorporation may be attached for payment of the debt, but not the proper effects of any one member. A royal burgh is a proper example, being an incorporation holding land of the King, and having consequently a power to contract debt. The present magistrates of Edinburgh are liable to a summary charge for payment of debt borrowed by their predecessors in office; the creditor may proceed to incarcerate the magistrates, as representing the town, if they postpone payment; but no creditor ever dreamed, that the provost of Edinburgh's proper estate can be adjudged for payment of any of the Town's debts.
Such is the case of incorporations who have power to contract debt. But there are many incorporations who have no such power, which is the present case. The butchers of Edinburgh have a seal of cause, and are united ad hunc effectum only, to bar any person from exercising that trade without paying them a composition; they may have a box, but no other common property; and they have no power to contract debt qua incorporation. If a man lend his money to such a society, he can have by law no action, except against the persons who receive the money; unless he can shew, that it was in rem versum of the society; in which case, he can claim his money out of the box. But it is absurd to think, that the office-bearers of such an incorporation can bind their successors in office, when they have no power to borrow money in name of the corporation. A man who accepts to be deacon of such an incorporation, has no reason to apprehend danger from public debt; he can never dream that an incorporation which has no power to borrow money, can be in debt.
The company of archers were incorporated by James VI. but with no power to borrow money. Suppose any one had been so foolish as to lend money to the company twenty or thirty years ago, would he not be laughed at to make a demand upon the present office-bearers of the company ?
‘ The Lords passed the bill without caution, upon consigning a disposition to the effects of the incorporation.’
