Discharge of one Correus how far it operates in favour of others.
Laird of Gairne v. Laird of Guthrie
1583.
June. Case No. No 2.
Found as above.
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The Laird of Gairne, or some of his tenants, persewit the Laird of Guthrie for the spoliation of certain goods and geir. It was answerit, That the persewar had transactit with ane Ferguson, ane hielandman, and so the action was entirelie takin away. To this was answerit, That this Ferguson was not ane persewit be Gairne, nor conteinit in the summons, and therefore, except he had been correus, the allegeance aucht not to be admittit, et hoc arg. L. 1. C. de transact. Nam transactio cum quibusdam facta aliis non debet prodesse. And so albeit the partie had transactit with the said hielandman, it sould not be profitable to the rest, and tak away his action that he had against them; and that speciallie, because the partie had intentit no action against the said Ferguson, nor yet was he correus debendi into the summons. To this was answerit, be reasoning inter duos, that it may be practised inter duos, quod transactio cum aliqua parte ubi sunt plures rei debendi, extinguit totam actionem ne aliter acto parliamenti provisum fuerit, as was done to the executors of the cardinal, in the spulzie of the cardinal of St Andrews; and to John of Carnegie in the Parliament anno 1581, et hoc ubi unusquisque tenetur in solidum, et hoc de jure, C. L. ult. de duobus reis, interruptio enim facta per unum correorum aliis prodest, et nocet; for albeit this Ferguson was not summoned, yet he was debtful for the same cause, et ex eadem stirpe obligationis, and so the transactions with him behovit to take effect, the hail effect and cause.——The Lords found be interlocutor, that the transaction with Ferguson, albeit he was not summoned, extinguished the hail action; et hoc una voce dicebant Domini quod rarum est.
