Scottish Court of Session Decisions

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

Grote
v.
Sutherland

Date: 8 November 1671

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Grote having freighted a ship belonging to Sutherland, and some other copartners, for carrying merchant goods from Caithness to Leith; it being proven that the goods were spoiled through the skipper's fault, in leaving the ship at anchor in the road with one single buoy; and that another ship having run upon her in the night, which might have been prevented if she had had sufficient men on board:

The owners who had subscribed the charter-party were found liable for the damage: but Sutherland and his copartner being both bound to perform the voyage, but not conjunctly and severally, the question did arise, If each of them was liable in solidum, or only pro rata porlione.

The Lords, having considered the case, and in law, that generally, where two or three are only correi debendi, and have not obliged themselves conjunctly and severally, then the obligation divides: As, likewise, the case in law, where two or three are obliged ad factum indivisibile, any one of them is liable in solidum; if the deed may be performed by either of them: as also, that case in law arising from charter-parties, how far exercitores navis are liable in actione exercitoria. Without determining these cases, they did decern, conform to the libel, against both the subscribers; but did not decide if they were liable, every one in solidum, or only pro rata portione: for, de exercitoria actione, there is a distinction made,—if Exercitores per magistrum exercent, aut per se: and, in the first case, where a contract is made cum magistro navis, [1eg. 1. sect. ultima,) omnes exercitores tenentur in solidum; and the reason is given, [1eg. 2.) ne in plures adversarios qui cum uno contraxerit. But, where the owners of the ship, per se navem exercent, proportionibus exercitationis conveniuntur; neqae enim invicem sui magistri videntur.—[1eg. 4. eodem tit.)

Thereafter, upon the 13th June 1672, this case being resumed, each one of the owners subscribing was found liable in solidum.

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