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Scottish Court of Session Decisions >>
M'Mitchel v M'Quharg. [1625] Mor 14687 (13 January 1625)
URL: http://www.bailii.org/scot/cases/ScotCS/1625/Mor3314687-073.html Cite as:
[1625] Mor 14687
Subject_1 SOLIDUM ET PRO RATA. Subject_2 SECT. XIV.
Executors how liable? - In a Process must they all concur, or have they Action pro rata?
M'Mitchel v. M'Quharg
Date: 13 January 1625 Case No. No. 73.
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Found that the executors are not liable in solidum to pay legacies, but pro virili.
Fol. Dic. v. 2. p. 382. Kerse MS. p. 133.Durie reports this case:
In an action betwixt M'Mitchell and M'Quharg, where two executors of a defunct were convened, for payment of a sum of money, left by the defunct to the pursuer, the Lords found, that where there are more executors to a defunct than one, that any one of them cannot be convened by the defunct's creditors in solidum, for the whole debt owing by the defunct; but that they ought all to be convened, each one proportionally, for their own parts, according as they are in number; except that where there is one of more only convened, that that one convened had intromitted with as much of the defunct's, goods as would pay the whole debt acclaimed without defalcation completely.
