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?
- v. Douglas
Date: 28 February 1626 Case No. No. 114.
Heir and executor sued and decerned to pay, without adding severally or in solidum, were found liable each for the half, though they might have been decerned for the whole.
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In an action of suspension ——— and Douglas of Cashogill, for suspending of a decreet obtained against the heir and executor of a defunct, debtor to the obtainer of the sentence; in this process and summons whereupon that sentence was pronounced, both the heir and the executor of the defunct were called unico contextu, without distinction, to pay the debt owing by the defunct, viz. the heir as heir, and the other who was executor, was hoc nomine called; and the summons was referred to the defender's oath, viz. that the one was heir, and the other was executor; and they both were holden as confessed, being summoned to give their oaths, and not compearing; whereupon sentence followed, decerning them to pay, conform to the tenor of the summons, whereby, as said is, they were both called and desired to make payment; and wherein it was not libelled, that each one of them was debtor in solidum, and that therefore they, and every one of them, was holden to make payment of the whole, but the tenor of the summons and conclusion thereof, bore only, that they should be decerned to pay the debt; likeas, the words of the sentence were so conceived; and it being disputed in this suspension, if the sums should divide betwixt the heir and the executor decerned, and that each one of them was subject to pay the half of the sum, or if the creditor might exact the whole, either from the heir or the executor, seeing they were both debtors to him, and every one of them by the law, in the whole sum: The Lords found, that albeit by the law, the heir, or the executor, and each one of them remained subject to the creditor in the whole debt; yet, in respect of the conception of the summons and pursuit, and of the sentence following thereupon, being of the tenor foresaid, neither the heir alone, nor yet the executor alone, could be charged for the whole debt, but that in respect of the same sentence, each one of them was only subject to pay the equal half of the sum decerned, whereas the creditor might of law have craved the whole from any of them, if the pursuit had been so intended and conceived, and decreet so given.
Act. Mowat & King.Alt.Clerk, Gibson.
Fol. Dic. v. 2. p. 386. Durie, p. 186.
