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John Campbell, Grandchild to the deceased John Reid of Merkland, v James Farquhar of Gilmilscroft. [1724] Mor 14626 (25 November 1724)
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[1724] Mor 14626
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[1724] Mor 14626
Subject_1 SOLIDUM ET PRO RATA. Subject_2 SECT. I.
Effect of the Terms Co-Principal and full Debtor.
John Campbell, Grandchild to the deceased John Reid of Merkland, v. James Farquhar of Gilmilscroft
Date: 25 November 1724 Case No. No. 3.
Where there is the term “conjunctly” only, without “severally,” or “co-principal or full debtor,” parties liable only pro rata.
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James Farquhar of Gilmilscroft, Mr. John Reid of Balochmyle, advocate, and Robert Farquhar of Townhead, by their bond acknowleged them to have borrowed and received from Mr. John Reid of Merkland, 2,000 merks, which they bound and obliged them conjunctly, and their heirs, executors, and successors, to pay to him at the term therein mentioned.
Though all three were bound, yet the money was borrowed for the use of Balochmyle, who failed in his circumstances; and the said John Campbell, as assignee to the bond, charged Gilmilscroft for the whole sum in it; which charge he suspended, alleging, that by the conception of the bond, he was only liable for a third of the sum.
The Lords found Gilmilscroft only liable pro rata, or for a third part of the sum; but found it relevant to prove by Gilmilscroft's oath, that it was the intention of the parties, and so understood by him, that he, and each of the two obligants, should be liable in solidum.
Act. Ja. Boswell.Alt. Arch. Hamilton, sen.Reporter, Lord Grange.Clerk, Dalrymple.
Edgar, p. 119.
