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Scottish Court of Session Decisions >>
Gordon of Seaton v The Heirs of Mr Edward Wright. [1626] 4 Brn 331 (26 November 1626)
URL: http://www.bailii.org/scot/cases/ScotCS/1626/Brn040331-0708.html Cite as:
[1626] 4 Brn 331
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Gordon of Seaton v. The Heirs of Mr Edward Wright
Date: 26 November 1626
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Halcraig reported Gordon of Seaton, against the Heirs of Mr Edward Wright, advocate, for relieving him of a proportional part of the sum of 1200 merks they were owing to John Hall, and which haill sum he has paid.
Alleged,—You and Sir James Stamfield gave a bond of relief to free Mr Edward, our father, of that debt, and to retire the bond, and procure him a discharge; and so you can never recur against his heirs for any part of it.
Answered,—Sir James and I are not bound conjunctly and severally; and so can only be liable pro rata, and not in solidum.
Replied,—Where the obligation is divisible and prestable per partes, there duo correi debendi are only bound pro virili parte; but if it be jus individuum, or ad factum prœstandum, as here, to retire the bond, and procure a discharge, each of them is liable in solidum. Others thought this too nice and subtile, seeing the payment of the sum is divisible: Therefore they considered that Sir James Stamfield, the other obligant in the bond of relief, being broken and insolvent, his part must fall on Gordon of Seaton; even as, in the case of two heirsportioners, if one of them turn irresponsal, the other is liable in the whole: and accordingly, in this case, the Lords found Gordon had no access to crave any recourse of relief against Mr Edward Wright's heirs, but was liable to relieve them in solidum.
