Subject_1 SOLIDUM ET PRO RATA. Subject_2 SECT. IV.
If an Obligant bound conjunctly only, should become insolvent.
Captain Strachan v. Morison
Date: 22 February 1668 Case No. No. 12.
Three persons wrongously intermeddled with a ship. One of them found liable in solidum, the others being insolvent.
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Captain Strachan pursues the heirs of umquhile George Morison, before the Admiral, for a ship and goods meddled with wrongously, by George and others, in anno 1638. They raise reduction, on this reason, that there was no probation, but one witness, and Captain Strachan's oath taken in supplement.
The Lords, having considered the probation, in relation to the ship, found it sufficiently proved, that Captain Strachan was an owner of an eight part of the ship; but found, that the value thereof was not proved; and seeing Morison and the other partners sold the ship, after they had long made use of her, without Strachan's consent, they found, that Strachan's oath in litem ought to be taken as to the value, and would not put him to prove the same, after so long time; and, for the profits thereof, ordained him annual-rent since he was dispossessed. This question arose to the Lords, whether, there being three partners beside Captain Strachan, who all meddled, whether Morison should be liable in solidum, or only for his third part? in which the Lords found the ship being corpus indivisible, and all the partners in a society, and that Captain Strachan being absent, in the King's service, from the time of their meddling, to the King's return, and the other parties in the mean time becoming insolvent,
The Lords found George Morison liable in solidum for the eighth part of the ship; but as to the wines and others that were in the ship, whereanent there was no co-partnership proved, and but one witness of George Morison's intromission, and Captain Strachan's own oath in supplement, the Lords found the same not sufficient; and yet allowed Captain Strachan, in fortification of the decreet, to adduce further probation.
