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Scottish Court of Session Decisions >>
Chalmers v Marshall. [1626] Mor 14715 (16 November 1626)
URL: http://www.bailii.org/scot/cases/ScotCS/1626/Mor3314715-115.html Cite as:
[1626] Mor 14715
Subject_1 SOLIDUM ET PRO RATA. Subject_2 SECT. XIX.
Upon a Decree against several, if each can be charged in solidum? - Can two creditors conjoined in a Decree, charge in solidum?
Chalmers v. Marshall
Date: 16 November 1626 Case No. No. 115.
One of two intromitters was not found liable in solidum, although, if decree had been insisted for in these terms, it would have been given.
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A decreet being obtained at the instance of James Chalmers against Marshall and White, as intromitters with the gear of a defunct who was his debtor, this decreet being suspended by one of the defenders, upon this reason, that he could not be charged for the whole debt, but only for the equal half thereof, seeing the sentence was given against them both as intromitters, which was proved by the sentence, and was not given against them and each one of them conjunctly and severally, the sum therefore behoved to divide; the Lords found, that the sum contained in the said sentence should divide betwixt the two defenders; for albeit if any of them had been pursued alone for the whole, and that it had been proved that that one person convened had intromitted, that person alone would have been decerned in solidum to pay the whole debt; yet seeing there were two convened, and proved against them both, and decreet given against them both; therefore the Lords found, that the sum should divide betwixt them, seeing the pursuer had elected them both to be pursued. The Lords, notwithstanding of this decision, used to decide where two executors are decerned to pay to a creditor, yet that creditor may seek execution upon that sentence against any of the two executors, decerned in solidum for the whole debts, without division in hoc casu, viz. if the creditor do prove, that that executor, against whom he seeks execution for the whole, intromitted with as much of the defunct's goods as will satisfy his whole debt, and no otherwise. But this was not sustained against any one of the two intromitters as said is.
Clerk, Scott.
Fol. Dic. v. 2. p. 386. Durie, p. 233.
