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Darlington brought an action against Gray for the L.60, with interest, under deduction of L.30 paid to account.
The plea in defence was—The general rule of law being, that, in pecuniary obligations of the description libelled on, the obligants are only liable pro rata, unless the obligation expressly bear that they are to be liable conjunctly and severally; and there being no such liability expressed in the present instance, the defender, Gray, fully implemented the obligation which he contracted to the pursuer, by making payment of the L.30; Ersk. iii. 3. 74; Alexander v. Scott, 21st Nov. 1827, 6. S. and D. 150; Bell's Princ. p. 21, 3d edit.
The Lord Ordinary pronounced the following interlocutor and note: ‘The Lord Ordinary having considered the closed record, and heard parties' procurators thereon, and made avisandum, repels the defences, and decerns in terms of the libel, under the deduction therein set forth: Finds expenses due, and remits the account thereof, when lodged, to the Auditor, to be taxed, and to report.’
The matter may be made to assume an appearance of subtlety and niceness on the refinements of the Roman law, and some of the difficulties raised in what were really nice cases in our own law; but on the plain meaning of the obligation now before the Lord Ordinary, he really thinks there can be no reasonable doubt.’
M'Neill pleaded —That this was a pecuniary obligation, and that the authority of the passage in Erskine applied.
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