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Dame Christian White v Mrs.Hay. [1698] Mor 14683 (21 June 1698)
URL: http://www.bailii.org/scot/cases/ScotCS/1698/Mor3314683-066.html Cite as:
[1698] Mor 14683
Subject_1 SOLIDUM ET PRO RATA. Subject_2 SECT. XIII.
Heirs Portioners, whether liable in solidum or pro rata?
Dame Christian White v. MrsHay.
Date: 21 June 1698 Case No. No. 66.
After insolvent heirs-portioners are discussed, their shares fall upon the rest, but so as to extend no farther than their proportion, and benefit of succession.
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Dame Christian White, relict of Sir James Turner, and Robert Colvill, executor-creditor to the deceased Lord Sinclair, against Mrs. Hay, as representing Colonel Patrick Hay, her Father, who granted their authors a bond for £.800 Sterling out of the first and readiest of the 50,000 rix dollars the Town and Senate of Hamburgh owed him. Alleged, She was but one of more daughters heirs-portioners, and so could be liable only pro rata effeiring to her proportion. Answered, She must be decerned in solidum, in regard her share of her father's succession amounts to more than all the sum acclaimed, which they restrict to 3000 merks, especially seeing the other sisters are discussed and found insolvent; and if she condescended on any estate belonging to them, the pursuers are willing to discuss and affect the same, before they insist in this subsidiary action to make her liable for their insolvent deficiency. Replied,If you have been silent till they failed, that taciturnity should rather prejudge you, the creditor, than me; and by the Common Law, wherever the prestation and debt is divisible, as money is, there the action divides, et unius inopia cæteros non onerat, L. 1. C. Si plures una sententia condemnati sint. The Lords found heirs-portioners not liable in solidum; but if the rest prove insolvent and be discussed, and no other estate can be condescended upon, then the shares of the insolvent fall upon the rest, but so as to extend no farther than to their proportion and benefit of the succession; even as an executor is only liable in valorem inventarii; and one may be decerned so far as his share reaches.
