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Scottish Court of Session Decisions >>
Captain Chalmers v Sir James Cunningham. [1735] Mor 11660 (00 January 1735)
URL: http://www.bailii.org/scot/cases/ScotCS/1735/Mor2711660-327.html Cite as:
[1735] Mor 11660
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A friend of a family, which was reduced to low circumstances, having undertaken to lay out his money and pains in compounding the family debts, and having accordingly compounded a great number; in a compt and reckoning betwixt the heir of the family and the trustee's heir, a proof was led, which fixed the eases that were got upon several of the debts; and the question was, What rule should be followed as to the debts about which the proof was silent? It was argued for the trustee's heir, That his charge was the total debt acquired, unless where a direct proof was made out of the ease. It was pleaded on the other hand, That seeing the trustee failed to do his duty by expressing the transacted sum in the conveyance, mentioning only a certain sum in general, in order to avoid discovery, every thing ought to be presumed against him, and he ought to have no claim upon account of any debt purchased in by him, further than he can instruct he paid. The Lords found it presumed, That eases were obtained of all the debts purchased in, and because these debts were of several sorts, some heritable, and some moveable, some better, some worse secured, they found, That the rule for fixing the eases must be to take a medium of what is proved to have been got upon debts of the same kind. See Appendix.
