JAMES and JOHN GEMMEL v JOHN BARCLAY & Ors (Court of Session)

A minute was subjoined to these articles in the following terms: ‘We, whose names are hereunto annexed, agree to pay the following sums affixed by us to our respective names, for the purpose of erecting a town-house and clock at Saltcoats, agreeably to the above regulations and plan submitted to us.’ Among the subscribers' names annexed to this minute were the suspenders, James and John Gemmel, for L.5, 5s.

The committee appointed by the subscribers acquired ground for the building, entered into contracts, and borrowed money to complete the work. They also collected the subscriptions. The suspenders attended several of the meetings, and paid L.2, 2s. being the two first instalments of their subscription. Having refused, however, to pay the remainder of their subscription, an action was raised against them before the Sheriff, in the name of the acting committee. The Sheriff decerned in terms of the libel.

The chargers insist against the suspenders, not merely in the character of office-bearers, but also as a committee appointed by the society for certain special purposes. One of the purposes of the appointment was to uplift the subscriptions: for this and the other purposes they were expressly appointed by every one of the members. Whether, therefore, as office-bearers, they would or would not possess a title to sue upon rights vested in the society, they alone have a title to recover money stipulated to be paid directly to themselves, for work committed to, and executed by them.

But even if the objection against a copartnery suing or being sued by its office-bearers was stronger than it is, it never could apply when the question is not with a stranger, but with a socius of the copartnery, who can never pretend ignorance of a title which has been conferred by his own contract; Moore and Others v. Hammond, 5 May 1827, 6. Darn . and Cress . 456; Roget v. Bishop, 1826, 2. Carrington and Payne , 343.

Again, in the case of the Culcreugh Cotton Company v. Mathie, 27 Nov. 1822, the Court rejected the title of the pursuers, it not being the designation under which the company contracted its obligations. In the later cases the Court only hesitated as to the title at common law, in consequence of the doubts entertained by the House of Lords in the case of the Commercial Bank; but these having been removed, the title at common law must remain as it was formerly.