Scottish Court of Session Decisions

Subject_1 SOLIDUM ET PRO RATA.
Subject_2 SECT. XIX.

Upon a Decree against several, if each can be charged in solidum? - Can two creditors conjoined in a Decree, charge in solidum?

Praris
v.
Captain Martine and his Owners

Date: 9 February 1675
Case No. No. 119.

A prizebeing adjudged by the Admiral, and assoilzied by the Lords, and having been sold, all the owners of the Privateer which took the ship so sold were found liable in solidum for the price thereof, though they were not decerned against conjunctly and severally.

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Ian Praris, master of the ship called The Brown Fish of Druntoun, did obtain reduction of the Admiral's decreet, condemning that ship as prize; by which the Captain and owners of the privateer were decerned to restore the ship and loading, or such a price therefore; and some of the owners being charged, they suspend on this reason, that they are charged for the whole sum, and are only liable for their share, not being decerned by the decreet conjunctly and severally, or in solidum; and because by the Lord's decreet they had ground of suspicion whereupon to bring up the ship, and so it cannot be esteemed as a spuilzie. It was answered, that seeing the decreet neither expresses in solidum or pro rata, it must be understood secundum naturam negotii; so that all the owners of the privateer must be liable in solidum, because the suspicion might restrict the spuilzie, quoad the privilege of oath in litem, &c. yet it remains wrongous intromission. 2. Partners are liable in solidum, and the owners are partners. 3. Exercitors are liable in solidum, for the Captain or master of the ship are in-put by them. 4. Correi debendi are liable in solidum, especially in facto indivisibili; and they being obliged to restore the ship, must be all obliged in solidum, the ship neither being species nor quantities, but unicum corpus, and the price comes only in the place thereof, and must be liable in the same manner; and if this were not sustained, strangers needed never offer to reclaim ships, because they could not know the owners, and if any of them were insolvent, could never recover their share, and therefore the owners ought to seek relief amongst themselves, and may impute to themselves, if they have entered in society with insolvent owners.

The Lords found the whole owners liable in solidum, although they were found to have seized the ship upon sufficient ground of suspicion.

Fol. Dic. v. 2. p. 387. Stair v. 2. p. 319. *** Dirleton reports this case:

A ship being taken by a caper, and being found by a decreet of the Admiral to be a prize, thereafter, upon a decreet of the Lords, reductive of that of the Admiral, being found to be a free ship, the stranger did urge payment against the Captain and the owners of the value; and it was alleged, that the decreet of the Lords ordaining restitution was against them correi debendi, and not in solidum, and that they are only liable for their own parts. Whereunto it was answered, that though it was found, that the Captain had probable reasons for bringing up the said ship, yet upon the matter the stranger was wronged by the taking of his ship, and in casu delicti, by spuilzie or wrongous intromission or otherwise, decreets against the persons therein contained are construed to be in solidum; and the stranger cannot know what the respective interests and parts of the owners are, and ought not distraht, and to be put to process against every one of them for declaring of their parts.

The Lords found that they were liable in solidum, reserving their debate and relief amongst themselves as to their several interests and proportions.

Reporter, Lord Forret. Clerk, Gibson. Dirleton, p. 118.