Two brothers being decerned conjunctly and severally in a decree, as representing their predecessor, the Lords repelled this reason of suspension, that they could only be liable prorata, as competent and omitted.
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The deceased Sir John Falconer of Balmakelly having a fishing upon the water of North Esk, belonging to his lands of Galraw, and John Scot of Comistoun having the cruives a little below the said fishing, they entered into a mutual contract, by which Sir John obliges himself not to quarrel any irregularities about the said cruives, by which his fishing was prejudged; and Comistoun bound him, his heirs, &c. to pay to Sir John, his heirs, &c. L. 24 Scots yearly, with a provision, that in case by a legal sentence at the instance of any person, the said cruives should be altered, and Comistoun necessitated to observe the distance of the hecks, height, and breadth of the dam-dyke, Saturday's Slop, &c. that then he should be free as to all terms thereafter, till the obtainer of the decreet shall discharge the same, intimation being always made to Sir John of the said action before litiscontestation. The Lady Galraw, as being infeft in the lands and fishing, insisted against Brothertoun, and Colonel Scot his brother, as representing Comistoun their uncle upon the passive titles, and at length recovered decreet against them for the L. 24 Scots, as the agreed tack-duty betwixt Sir John and their uncle: And they suspended upon several reasons, and among others these two, viz, 1mo, That they being decerned in general to make payment of the sum, it behoved to divide betwixt them pro rata, as if they had been bound conjunctly in one bond: And adduced two decisions observed by Durie, the one the last of February 1626, where the Lords found, “That two persons pursued upon the passive titles, the one as heir, and the other as executor, were only liable each for his own share, in respect it was not libelled that ilk one of them should be liable *:” and another case, the 16th of November 1626, betwixt two vitious intromitters†. 2do, Comistoun's contract with Sir John Falconer was ad diem, viz. until a decreet was
* —— —— against Douglas, voce Solidum et pro rata.
† Chalmers against Marshall. Ibidem.
recovered at the instance of one of the upper heritors for regulating the cruives; and now Brothertoun produces one, so that the term of the obligation is expired.
Answered for the charger, 1mo, That these objections, however competent, yet were omitted out of the first decreet charged on, at which time the suspenders should have pleaded that they could only be liable pro rata; and though the libel bears not that ilk one of them should be liable, yet the title whereon they are converted being such as would have subjected each of them, they cannot now found upon this defence, far less can Brothertoun, who is sucessor in this very fishing; and as to the decision adduced, Durie adds, That notwithstanding this decision, the Lords used to decide, where two executors are decerned to pay a creditor, yet that the creditor may seek execution upon that sentence against any of the two; conform to which the Lords have ever since decided, particularly 9th December 1628, Sutor voce Solidum et pro rata. To the second, besides competent and omitted, the said decreet was not in terms of the contract, which required intimation to be made of any pursuit to Sir John, his heirs, &c.
The Lords repelled both these reasons of suspension, as being competent and omitted.
Act. Horn.Alt. John Ogilvie.Clerk, Roberton.
Fol. Dic. v. 2. p. 208. Bruce, v. No 121. p. 157.
