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?
Marjoribanks v. Balfour
Date: 9 December 1575 Case No. No. 71.
One of more executors cannot transact or grant discharge without his colleagues.
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Mr. John Marjoribanks, executor to umquhile Thomas Marjoribanks, pursued the Laird of Balfour for the sum of £.700 owing to the said Thomas. The defender alleged, that James Johnston, executor with Mr. John, had transacted with him for £.200, which £.200 he had received, and got his discharge thereupon, and of the whole sum. The pursuer alleged, that albeit James Johnston was executor, yet he might neither transact nor compound without the pursuer with any part, nor yet give quit without the pursuer's consent, being his colleague; which allegeance of the pursuer the Lords found relevant, and repelled the defender's allegeance.
Fol. Dic. v. 2. p. 382. Colvil MS. p. 250.*** Balfour reports this case:
If there be divers and sundry executors, and one of them, without consent of the rest, compone, transact, or give quit, renounce, and discharge, any sum of money or debt owing to the dead the time of his decease, the same is null in the self, and of no avail.
