Subject_1 SOLIDUM ET PRO RATA. Subject_2 SECT. II.
Divisible Prestation.
David Sloan v. John Macmillan
Date: 5 February 1751 Case No. No. 7.
A letter promising to bind conjunctly for a bargain, was found to bind the writer conjunctly and severally.
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John Macmillan in Glenlaggan, sent by Alexander Macguffock to David Sloan in Forrest, a missive, in these terms:—“Sir, I desire you may sell your tups and ewes as cheap as possible, for your wedders is too dear; delay taking security till I come home, and I shall bind conjunctly with him for your sheep.” Macguffock bargained for the tups and ewes, and took them away, together with the wedders which had been formerly agreed for: Sloan obtained a decreet before the Steward of Kirkcudbright for the whole price in so far as resting. And in a suspension, the Lord Ordinary, 4th January, 1750, “Found the letter did subject the suspender in payment of the whole price of the sheep.”
Pleaded in a reclaiming bill, he is bound only conjunctly.
2dly, Whereas the charger has alleged, that the suspender has already paid more than the half, which explains his letter; this is not true, for he has paid within the half; and the charger is paid something more, which exceeds the half, by a draught of Macguffock's
Answered: The suspender delivered in Macguffock's draught, which was payment by him: The meaning of the letter is, that he should pay the whole; it promises that he should become bound; and if they had accepted a bill for the price, each would have been bound for the whole.
The Lords adhered.
Act. Boswell.Alt. Macdowal.Clerk, Forbes.
Fol. Dic. v. 4. p. 294. Falconer, v. 2. No. 190. p. 229.
