Subject_1 SOLIDUM ET PRO RATA. Subject_2 SECT. III.
Indivisible Prestation.
Mr Archibald Denniston v. Semple of Fullwood
Date: 15 July 1669 Case No. No. 8.
Three overseers of a minor became bound to cause the minor grant a certain relief. He having failed to grant it, the obligants were found liable pro rata.
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Mr. Archibald Denniston being left tutor to the three daughters of Denniston of Cowgrain, and Fullwood, elder and younger, and the tutor's brother, being left overseers, by articles of agreement betwixt the overseers and the tutors, they are bound to cause the minors' curators give security for 4,000 merks, and to relieve him of the sum of 17,000 merks, which he had paid, and was engaged for Cowgrain. Whereupon, having charged Fullwood to fulfil the articles, he did suspend upon that reason, That the three overseers not being bound, conjunctly and severally, he could not be liable in solidum, but only pro rata portione. This reason was sustained, notwithstanding it was answered, that the obligement being ad faciendum, and not to pay a liquid sum, every one of the overseers being protutors, were liable in solidum; and this was the rather found, that the charger did not insist against his own brother, but intended to put the whole burden upon the other two overseers, who had not so near an interest in the pupil.
Fol. Dic. v. 2. p. 378. Gosford MS. p. 72.*** Stair reports this case:
July 16.—The Lairds of Fullwood, elder and younger, and Denniston, being appointed overseers by Cowgrain to his daughters, the eldest daughter being married to Mr. Archibald Denniston's son, there is a contract betwixt Mr. Archibald and the three overseers taking burden for the daughters, by which the estate of Cowgrain, and Mr. Archibald's estate, are both settled in the person of his son; and the overseers are obliged to cause the minors, and their curators, become obliged to relieve Mr. Archibald of 17,000 merks. Mr. Archibald charges Fullwood upon the contract, who suspends, alleging, that the clause can only import that he is liable for his own part, but not in solidum, seeing the clause bears not the overseers to be bound conjunctly and severally. It was answered, that the obligement is not for payment of a sum, which is divisible, but for doing a fact which is indivisible, viz. the minors being become bound to relieve, which is all one, as if the overseers had been obliged to cause the minors subscribe a bond of relief, which could not divide, but would have obliged every one of them in solidum. It was answered, that the result of the obligation being relief of sums which are divisible, the obligation, at least the damage and interest succeeding in place thereof ought to be divisible, for the obligation being factum alienum imprestable to the overseers, and the third overseer that refuses to concur, being the charger's own brother, there is no reason that the overseers, who had no office or obligement, but were only overseers, which is not nomen juris, should be liable for the charger's own brother, his third part thereof.
