Subject_1 SOLIDUM ET PRO RATA. Subject_2 SECT. XVII.
Wrongous Intromitters. - Delinquents.
Captain Strachan v. George Morison
Date: 17 January 1668 Case No. No. 106.
In wrongous intromission, each intromitter is not liable in solidum, but a joint intromission provedagainst many, infers against each of them an equal share, unless it be proved that they intromitted with a greater share; but there is no necessity to prove against each of them the particular quantity of their intromissions.
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Captain Strachan having obtained decreet before the Admiral against George Morison for wrongous intromission of a loading of wine belonging to the pursuer, in anno 1638, which was brought home by him in the ship called Stulla, whereof he had an eighth part, and the defenders the rest; and the pursuer being skipper, did upon his own credit buy the wine, and having brought it home, the ship was broken at Newburgh, and loading was meddled with by the defenders, wherupon they are decerned to pay conjunctly and severally. George Morison raises reduction on two grounds, 1st, That the decreet was unjust, in so far as the defenders were decerned in solidum, each for the whole; 2dly, That there was no probation of any of their intromissions, but upon the testimony of one witness, and Captain Strachan's own oath take in supplement. It was answered to the first reason, that the whole intromitters were justly decerned in solidum; 1st, Because this was in itself a spuilzie, and albeit the defender did not insist within three years, yet he ought not to be excluded, because he was in the King's service all the time of the trouble, and fled the country at the time of this intromission; 2dly, Because the prescription of the privilege of spuilzie is only in relation to violent profits, and the oath in litem, and these are only lost, if pursuit be not within three years; but the parties being all liable in solidum is not lost, for the intromission remains still a wrongous intromission, and is not in the same case as a vindication and restitution of goods in the defender's hands, without violence or vice, and in many cases correi are liable in solidum as tutors, or where the intromission is joint or promiscuous; for it were against reason, if there were many vitious intromitters, that the particular intromission of each of them behoved to be proved, which oftentimes is impossible, as in the same case, and likewise socii are liable in solidum, and here was a copartnery betwixt these parties. It was answered for Morison, that there were three years elapsed since the King's restoration before any pursuit, and though that had not been, there is nothing that can stop that short prescription, and therefore infancy or minority hinders not the course thereof, and in this case the decreet in question restricts to wrongous intromission. As to the second, all the privileges of spuilzie are lost by the prescription; and it was never found at any time, that in wrongous intromissions; the parties were all liable in solidum, especially where the thing intromitted with was divisible, as wines, and as to the alleged copartnership there was nothing libelled thereon.
The Lords did not consider the point of copartnership, but found, that in wrongous intromission, each intromitter was not liable in solidum, but a joint intromission proved against many, did infer against each of them an equal share, unless the pursuer proved that they intromitted with a greater share, and found not a necessity to prove against each of them the particular quantity of their intromission.
Fol. Dic. v. 2. p. 385. Stair, v. 1. p. 508.*** Dirleton reports this case:
A pursuit for spuilzie being restricted to wrongous intromission, it was alleged, that the defenders are only liable for their intromission respective, in so far as it should be proved that each of them had intromitted at least pro virili and conjunctly. It was replied, that the defenders being convened ex delicto, they are liable in solidum as correi, being all accessory to the wrong, and the pursuit, as it is restricted, is not for intromission simply, but wrongous intromission; and though the pursuer, by restricting the pursuit, as said is, has precluded himself as to violent profits, and juramentum in litem, and other consequences of spuilzie; he has not prejudged himself as to that benefit, that all who are accessory to the wrong should be liable in solidum which the law has introduced upon just ground, seeing it is impossible in such cases where divers persons do intromit, to distinguish and prove their intromissions.
