Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 SOCIETY.
Subject_3 Creditors, in debts contracted by socii in a joint adventure, are preferable on the proceeds to the particular creditors of either of the socii.

John Crooks and Others
v.
John Tawse

Date: 29 January 1779

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[Fac. Coll. VIII. 113; Dict. 14,596.]

Braxfield. This is not the case of a copartnery, but of two persons having a joint right in an area, and agreeing to build jointly: the building is the property of both pro indiviso: each might have pursued a division; but, instead of that, they agreed to sell. The price comes in the place of the subject. This is different from the case of a company, where the right of each individual is a share in the universitas. The method of affecting this subject is by an adjudication of each share. When a man makes furnishings for a building, he has his employer personally bound, but he has no real lien on the subject.

Elliock. I never understood that there was a copartnery here, but merely a common property: this was so much the case, that, when the parties sold a storey, they divided the balance.

Kaimes. The money laid out is in rem versam of the partner, and consequently of his creditors.

Gardenston. Copartneries may be carried on in every thing that is the subject of industry. When a joint purchase of an area is made, and a house built at common expense, this is a copartnery. Creditors trust the builders on the faith of the adventure; but I think that there was an end of the adventure by the tale of the subjects.

Braxfield. That will not do; for, if once there is a copartnery established, the creditors will have right to the funds of the company, even after its dissolution.

Monboddo. The question, here, is not with respect to a common property, but with respect to a common business.

Justice-Clerk. I admit Lord Braxfield's principles, but I deny their application to the present case. Two tradesmen, engaged in building a teneraent, are so far in a copartnery that persons furnishing materials to them have a right in the subject preferable to that of any private creditor.

President. I do not see a copartnery here; but, call it what you will, here there was a relation between two people: if one of them had become bankrupt, the creditors would have had recourse against the whole subject.

On the 29th January 1779, “The Lords found that Crooks, &c. are entitled to Porteous's half of the bond, for relief of the debts contracted by them for carrying on the joint adventure;” altering Lord Elliock's interlocutor.

Act. H. Erskine. Alt. A. Millar.

Diss. Elliock, Stonefield, Hailes, Braxfield.