Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

William Ferguson
v.
George Link

Date: 18 January 1671

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There being a copartnery betwixt the deceased John Rolling and George Link, there was a parcel of goods belonging to them sold to one Andrew Melvin, for which he gave bond to the said John, and George, and their heirs, which was registrated; and the principal being in the custody of Link, he did pursue and recover payment of Melvin, of his equal half at Elsmoore. Ferguson, being assignee made by Rolling's wife, who was executrix-creditrix of her husband, did pursue the said Linke for exhibition of the principal bond, and for the equal half of the money he had received, in respect the whole sum contained in the bond was made due to them both without division: Likeas it was granted as the price of goods belonging to them in copartnery.

The Lords did, notwithstanding, assoilyie from payment of the half of the sum received; because the bond, being granted to them conjunctim, did belong equally to them; and any one might pursue for his own half: And albeit it was for the price of goods of the copartnery, yet the bond being taken and received, as said is, was not to be regulated as the goods themselves would have been, wherein every one of the copartners would have had an equal interest, as to all particulars; whereas the bond being conceived, as said is, ought to give right according to all bonds of that nature; and so gave right to each of the creditors to the half which they might lawfully uplift.

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