Subject_1 SOLIDUM ET PRO RATA. Subject_2 SECT. XIV.
Executors how liable? - In a Process must they all concur, or have they Action pro rata?
- v. Hamilton
Date: 15 July 1565 Case No. No. 69.
Where one of more executors was appointed to be intromitter, it was found that he might pursue without concourse of the rest.
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In an action pursued by———, as executor to umquhile———, against Hamilton of Stainhouse, as heir to his father, to hear a contract transferred active in the pursuer, and passive in the defender, it was opponed by the defender, that there were more executors than he, and so he could not desire the contract to be transferred in him only. It was answered, that the pursuer was constituted by the deed universal intromitter, and therefore the rest of the executors had no interest to pursue any action. It was replied, that if they should not have that interest, the office of executry was of no effect nor avail. It was found by the Lords, that the pursuer only without the rest might pursue, by reason he was constituted only intromitter; and towards the rest of the executors in this case, that their office was frustrate, and of no avail.
